NATIVE TITLE AMENDMENT BILL 1997 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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NATIVE TITLE AMENDMENT BILL 1997

1996-97

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

THE SENATE

NATIVE TITLE AMENDMENT BILL 1997

SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government

(Circulated by authority of the Special Minister of State
Senator the Honourable Nick Minchin)

11318 Cat. No. 97 1752 8 ISBN 0644 36460 2

AMENDMENTS TO THE NATIVE TITLE AMENDMENT BILL 1997

Outline
1. These amendments make changes to the provisions of the Native Title
Amendment Bill recently passed by the House of Representatives. Some of these
amendments correct technical errors or omissions in the Bill, such as incorrect cross
references.

2. Other amendments contain improvements to the technical operation of the
Bill. These include amendments to improve the agreements provisions, the future act
processes, the Federal Court and National Native Title Tribunal processes, to provide
appropriate protection of legally privileged information held by representative bodies,
to clarify the period for which grants may be made to representative bodies and to
improve other technical aspects of the representative body amendments.

3. The remaining amendments incorporate suggestions arising from the
consideration of the Bill by the Parliamentary Joint Committee on Native Title and
the Aboriginal and Torres Strait Islander Land Fund and the Senate Legal and
Constitutional Legislation Committee, where these suggestions are consistent with the
Government's policy as explained in its 10 Point Plan. A range of notification
provisions have been included.

Financial Impact Statement
4. The Commonwealth has to meet its own liabilities under the NTA. Further the
Commonwealth has offered to assist the States and Territories in meeting their costs
arising from pre-1994 acts, intermediate period acts and some future acts. It is the
Government's view that the confirmation provisions reflect the common law (and
therefore would not give rise to compensation); however, section 23J provides a right
of compensation for any extinguishment caused by the confirmation provisions.

5. These amendments ensure that just terms compensation is paid for any
acquisition of property, and appropriates money accordingly.

AMENDMENTS TO NATIVE TITLE AMENDMENT BILL 1997

Amendment (1) - Schedule 1, item 9, page 6 (line 13)

This amends the heading to proposed Division 2A. This is merely a consequential amendment required as a result of the insertion of new sections 22EA and 22H into Subdivision 2B.

Amendment (2) - Schedule 1, item 9, page 7 (line 16)

This amendment is to proposed paragraph 22B(a) which provides that native title is extinguished by certain Category A intermediate period acts attributable to the Commonwealth. This amendment removes the reference to subsection 23211(6) as that subsection is to be removed from section 232B by amendment (5 1).

Amendment (3) - Schedule 1, item 9, page 9 (after line 6)

This amendment inserts a new section into Division 2A which provides for the validation of intermediate period acts.

Proposed section 22EA 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 current paragraphs 26(2)(a), (b) and (c)); and
• are attributable to the Commonwealth; and
• took place between 1 January 1994 and 23 December 1996; and
• took place over land that is or was the subject of a freehold or leasehold grant or public work.

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.

Not all acts in relation to which notice is given under subsection 22EA(I) are validated intermediate period acts, since many 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.

Amendment (4) - Schedule 1, item 9, page 9 (after line 27)

This amends Division 2A by inserting 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 current paragraphs 26(2)(a), (b) and (c)); and
• is attributable to the State or Territory; and
• took place between 1 January 1994 and 23 December 1996; and
• took place over land that is or was the subject of a freehold or leasehold grant or public work.

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 221-1(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.

Not all acts in relation to which notice is given under subsection 221-1(1) will be validated intermediate period acts, since many 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.

Amendment (5) - Schedule 1, item 9, page 11 (line 27) to page 12 (line 16)

This amendment is to proposed section 23B which defines the term 'previous exclusive possession act'. The amendment removes subsections (4) and (5) from section 23B 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. This was never the intention behind section 23B and the amendment will put this beyond doubt.

Amendment (6) - Schedule 1, item 9, page 12 (lines 17 to 32)

This amendment is to proposed section 23B which defines the term 'previous exclusive possession act'. The amendment removes overlap between the confirmation provisions and the future act provisions.

The 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 241B.

Amendment (7) - Schedule 1, item 9, page 13 (lines 7 to 28)

This amendment is to proposed section 23B which defines the term 'previous exclusive possession act'. The amendment removes overlap between the confirmation provisions and the future act provisions.

The 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.

Amendment (8) - Schedule 1, item 9, page 13 (lines 29 to 34)

This amendment is to proposed section 23B which defines the term 'previous exclusive possession act'. Subsection 23B(9) already excludes from the definition acts that consist of the grant or vesting of any thing by, or pursuant to, legislation that provides for such grants or the vesting of such things only to, in or for the benefit of Aboriginal peoples or Torres Strait Islanders (see new paragraph (9)(a)).

The amendment will also exclude:
• 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 (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)).

By excluding such acts from the definition of 'previous exclusive possession act' and thereby the confirmation provisions, the amendment ensures that the effect of such acts on native title are left to the determination of the common law.

The insertion of new subsection 23B(9A) puts it beyond doubt that new subsection 2313(9) in no way affects the validity of acts to which that subsection applies. 'Valid' is defined in section 253 to include 'having full force and effect'.

Amendment (9) - Schedule 1, item 9, page 14 (line 8)

This amendment is to proposed subsection 23Q1) which confirms that native title is extinguished by certain previous exclusive possession acts attributable to the

Commonwealth. This amendment removes references to subsections 2313(4) and 2313(5) as these subsections are to be removed from section 23B by amendment (5).

Amendment (10) - Schedule 1, item 9, page 14 (lines 8 and 9)

This amendment is to proposed section 23C which confirms that native title is extinguished by a previous exclusive possession act attributable to the Commonwealth. The amendment, which removes the reference to subsection 2313(6) from subsection 23C(I), is required as a consequence of the removal of subsection 2313(6) by amendment (6).

Amendment (11) - Schedule 1, item 9, page 14 (line 17)

This amends proposed subsection 23Q2) which confirms that native title is extinguished by a previous exclusive possession act that consists of the construction of a public work by the Commonwealth. The amendment, which removes the reference to subsection 2313(8) from subsection 23Q2), is required as a consequence of the removal of subsection 2313(8) by amendment (7).

Amendment (12) - Schedule 1, item 9, page 17 (after line 2)

This amends proposed section 23G, which confirms the partial extinguishment of native title by previous non-exclusive possession acts of the Commonwealth.

Paragraph (d) 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 in relation to the area of land covered by the lease, 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 not.

Amendment (13) - Schedule 1, item 9, page 18 (line 15)

This amendment replaces the heading to Subdivision A of Division 3, Part 2, which contains an overview of Division 3 and a number of operative provisions.

Amendment (14) - Schedule 1, item 9, page 20 (after line 26)

This amendment is to Subdivision A of Division 3 Part 2, which deals generally with the future act regime. The 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 will not affect the validity of the future act.

Amendment (15) - Schedule 1, item 9, page 21 (line 11)

This amends proposed paragraph 2413B(a) which provides that a body corporate agreement may provide for, among other things, the doing of a future act subject to conditions contained in the agreement. The amendment makes it clear that these conditions may be about procedural matters. Such agreements, or indeed an agreement about any of the matters referred to in section 241313, can be made even if some of the parties do not concede that native title exists, or that it includes the rights asserted.

Amendment (16) - Schedule 1, item 9, page 24 (line 24)

This amends proposed paragraph 24C13(a) which provides that an area agreement may provide for, among other things, the doing of a future act subject to conditions contained in the agreement. The amendment makes it clear that these conditions may be about procedural matters. Such agreements, or indeed an agreement about any of the matters referred to in section 24C13, can be made even if some of the parties do not concede that native title exists, or that it includes the rights asserted.

Amendment (17) - Schedule 1, item 9, page 31 (after line 29)

This amends proposed section 24CK which sets out the conditions for registration of an area agreement certified by the relevant representative Aboriginal/Torres Strait Islander bodies.

The amendment inserts a new subsection (4) which sets out the information to which the Registrar must have regard in deciding whether he or she is satisfied as mentioned in paragraph 24CK(2)(c). The amendment also provides that the Registrar may, but need not, take into account any other matter or thing.

Amendment (18) - Schedule 1, item 9, page 33 (line 28)

This amends proposed paragraph 24DB(a) which provides that an alternative procedure agreement may provide for, among other things, the doing of a future act subject to conditions contained in the agreement. The amendment makes it clear that these conditions may be about procedural matters. Such agreements, or indeed an agreement about any of the matters referred to in section 241313, can be made even if some of the parties do not concede that native title exists, or that it includes the rights asserted.

Amendment (19) - Schedule 1, item 9, page 48 (line 17)

This amends paragraph 24GB(2)(b) by replacing the word "farmstay" with the word "farm". 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).

Amendment (20) - Schedule 1, item 9, page 48 (line 23)

This amendment is to proposed subsection 24GB(3), which removes certain kinds of farmstay tourism from the operation of section 24GB.

This amendment is necessary as a result of the amendment to paragraph 24GB(2)(b) (amendment (19)). That amendment will make it clear that section 24GB applies to certain acts that permit or require farm tourism. The exception contained in subsection 24GB(3) relates to all such farm tourism.

Amendment (21) - Schedule 1, item 9, page 48 (line 26) to page 49 (line 2)

This amendment replaces proposed subsection 24GB(4). The amendment further limits the future act provisions in relation to primary production activities on pastoral leases. 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. 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. 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.

The purpose of this amendment is to ensure that native title is not extinguished by future acts to which section 24GB applies. If the grant of additional rights to a lessee would result in the extinguishment of native title then, as the note to subsection 24G11(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.

Amendment (22) - Schedule 1, item 9, page 49 (after line 15)

This amendment is to proposed section 24GB which provides that, in certain circumstances, future acts that consist of the grant of a permit to undertake a primary production activity, and some associated or incidental activities, on a non-exclusive agricultural or non-exclusive pastoral lease will be valid. The amendment inserts a notification requirement in relation to some future acts covered by this section, namely:
§ future acts that permit or require forest operations or horticultural activities or aquacultural activities to be undertaken; and

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§ future acts that permit or require an agricultural activity to be undertaken on a nonexclusive 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.

Amendment (23) - Schedule 1, item 9, page 50 (line 13)

Ibis amends proposed section 24GC, which provides, among other things, that the doing of certain primary production and associated or incidental activities on nonexclusive agricultural or non-exclusive pastoral leases prevails over any native title rights and interests.

The amendment to paragraph 24GQ(2)(a) puts it beyond doubt that the doing of any activity mentioned in paragraph 24GC(I)(c) does not extinguish native title rights and interests that survived the grant of the non-exclusive agricultural or non-exclusive pastoral lease.

Amendment (24) - Schedule 1, item 9, page 51 (line 2)

This amendment is to proposed section 24GD which provides that, in certain circumstances, a future act that permits or requires the carrying on of an 'off-farm' activity will be valid. The amendment precludes a future act of this kind from being valid 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.

Amendment (25) - Schedule 1, item 9, page 55 (after line 6)

This amendment is to proposed section 24HA which provides, among other things, that a future act is valid if it consists of the grant of a valid lease, licence, permit or authority under legislation in relation to the management or regulation of water, living aquatic resources or airspace. The amendment inserts a new subsection (7) that applies to the grant of a lease, licence, permit or authority under subsection 24HA(2) only. 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.

Amendment (26) - Schedule 1, item 9, page 60 (after line 29)

This amendment is to proposed section 24JB which provides that future acts done in good faith pursuant to certain kinds of reservations and leases will be valid. The amendment inserts a new subsection (6) which requires the person proposing to construct a public work 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.

Amendment (27) - Schedule 1, item 9, page 67 (line 13)

This amendment is to proposed subsection 24M1)(2) which provides that native title onshore can be extinguished by a non-discriminatory compulsory acquisition. A requirement of such a non-discriminatory process is that non-native title interests are also acquired. This amendment removes the words "whether compulsorily or otherwise" from this requirement with regard to non-native title interests.

Amendment (28) - Schedule 1, item 9, page 67 (after line 15)

This amendment is to section 24MD which provides that native title onshore can be extinguished by a non-discriminatory compulsory acquisition. This amendment 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 are when their rights are acquired.

Amendment (29) - Schedule 1, item 9, page 68 (line 16 to 19)

This amendment adjusts the provision which allows the Commonwealth to pass on native title compensation liabilities to third parties. It will make clear that if a law of the Commonwealth states that a third party is liable for the compensation, then that third party, and not the Commonwealth, is liable. For example, mining legislation generally makes the miner, not the government which issues the lease, liable for compensation for the mining. The miner who is liable may not, however, be the person who originally requested the mining lease, since the lease may have been transferred in some way.

Amendment (30) - Schedule 1, item 9, page 68 (lines 22 to 25)

This amendment adjusts the provision which allows a State or Territory to pass on native title compensation liabilities to third parties. It will make clear that if a law of the State or Territory states that a third party is liable for the compensation, then that third party, and not the State or Territory, is liable. For example, mining legislation generally makes the miner, not the State or Territory which issues the lease, liable for compensation for the mining. The miner who is liable may not, however, be the

person who originally requested the mining lease, since the lease may have been transferred in some way.

Amendment (31) - Schedule 1, item 9, page 70 (line 30)

This amendment is to proposed subsection 24NA(3) which provides that native title offshore can be extinguished by a non-discriminatory compulsory acquisition. A requirement of such a non-discriminatory process is that non-native title interests are also acquired. This amendment removes the words "whether compulsorily or otherwise" from this requirement with regard to non-native title interests.

Amendment (32) - Schedule 1, item 9, page 71 (after line 2)

This amendment is to proposed subsection 24NA(3) which provides that native title offshore can be extinguished by a non-discriminatory compulsory acquisition. This amendment 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 are when their rights are acquired.

Amendment (33) - Schedule 1, item 9, page 71 (line 31) to page 72 (line 2)

This amendment adjusts the provision which allows the Commonwealth to pass on native title compensation liabilities to third parties. It will make clear that if a law of the Commonwealth states that a third party is liable for the compensation, then that third party, and not the Commonwealth, is liable. For example, mining legislation generally makes the miner, not the government which issues the lease, liable for compensation for the mining. The miner who is liable may not, however, be the person who originally requested the mining lease, since the lease may have been transferred in some way.

Amendment (34) - Schedule 1, item 9, page 72 (lines 5 to 8)

This amendment adjusts the provision which allows a State or Territory to pass on native title compensation liabilities to third parties. It will make clear that if a law of the State or Territory states that a third party is liable for the compensation, then that third party, and not the State or Territory, is liable. For example, mining legislation generally makes the miner, not the State or Territory which issues the lease, liable for compensation for the mining. The miner who is liable may not, however, be the person who originally requested the mining lease, since the lease may have been transferred in some way.

Amendment (35) - Schedule 1, page 79 (line 4)

Section 26B allows certain small scale gold or tin mining to be removed from the right to negotiate process. This amendment will include in the concept of 'approved gold or tin mining acts' mining that involves the separation of gold or tin by aeration as well as washing.

Amendment (36) - Schedule 1, item 9, page 81 (lines 14 to 23)

This amends proposed section 26C, which excludes the creation or variation of certain rights to mine opals and gems from the right to negotiate. This amendment replaces proposed subsection 26C(I) with a new subsection that will enable 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:
• is not a right to explore or prospect; and
• 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; and
• allows that mining in an area no larger than 5 hectares; and
• is conferred for a period of no more than 5 years; and
• is renewable for periods of no more than 5 years.

'Puddling' is the washing process by which opals and gems are separated from surrounding clay.

The amendment also inserts a new subsection (IA) that will enable exploration or prospecting for opals or gems in an area no larger than 500 hectares to be excluded from the right to negotiate if the conditions set out in that subsection are satisfied.

Amendment (37) - Schedule 1, item 9, page 82 (lines 5 to 16):

This amendment replaces proposed subsection 26Q4), which 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.

This amendment, which is required as a result of amendments to subsection 26C(I), will require 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; or
• mining that consists of puddling in respect of opals or gems in an area no larger than 5 hectares; or
• mining consisting of exploration or prospecting for opals or gems in an area no larger than 500 hectares.

Amendment (38) - Schedule 1, item 9, page 86 (line 1)

This amendment is one of a number which together provide 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
• are registered before 4 months from that day.

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This gives the Registrar of the National Native Title Tribunal one month within which to consider the claim for registration purposes. Of course claimants with a claim which is already registered are also parties to the right to negotiate.

This amendment accommodates these time requirements into paragraph 28(1)(a), which concerns what happens if there are no native title parties at the end of the notification period.

Amendment (39) - Schedule 1, item 9, page 89 (lines 16 to 24)

This amendment to section 30 provides that the 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
§ are registered before 4 months from that day.
This gives the Registrar of the National Native Title Tribunal one month within which to consider the claim for registration purposes. Of course claimants with a claim which is already registered are also parties to the right to negotiate.

Amendment (40) - Schedule 1, item 9, page 91 (line 16)

This amendment to section 32 is consequential up on the change which provides 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
• are registered before 4 months of that day.

This amendment accommodates the new time requirements into section 32 which deals with the expedited procedure.

Amendment (41) - Schedule 1, item 9, page 93 (line 12)

Ibis amendment to section 34A is consequential upon the change which provides 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
• are registered before 4 months of that day
This amendment accommodates these time requirements into section 34A, which concerns the Ministerial determination in the case of urgent significant acts.

Amendment (42) - Schedule 1, item 9, page 95 (line 4)

This amendment is to proposed subsection 35(1) which provides for negotiation parties to apply to the arbitral body for a section 38 determination where certain conditions are satisfied. The Bill currently provides that one of these conditions is that at least four months must have passed since the notification day (paragraph 35(1)(a)). The amendment changes the four month period to six months. Ibis will give negotiation parties more time to negotiate before one of the parties can apply for a determination.

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Amendment (43) - Schedule 1, item 9, page 116 (after line 31)

Ibis amendment simply inserts a note 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.

Amendment (44) - Schedule 1, item 10, page 117 (line 25)

This amends proposed section 441-1, which deals with the doing of activities pursuant to a requirement or permission contained in a valid lease, licence, permit or authority.

The amendment to paragraph 441-1(c) puts it 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.

Amendment (45) - Schedule 1, page 118 (after line 4)

Section 47A Reserves etc. covered by claimant applications

This amendment is 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. The current section 47 allows a claim for pastoral lease land, notwithstanding past extinguishment, where the claimants hold the pastoral lease. Ibis 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.

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.

The first requirement is that the claim is made over land:

• 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 Aboriginal peoples or Torres Strait Islanders.
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The second requirement is that one or more of the claim group occupy the land.

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.

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.

If the claim is successful, the native title rights are nonetheless subject to the current land rights grant, the trust or the reservation. 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. 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.

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).

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). That is the native title was subject to the grant for the period of the grant but revived in full when the grant ceased to have effect. Any historical freehold or leasehold interest will have ceased to have any effect, and therefore the native title rights will not have been extinguished by them or be subject to them.

Section 47B Vacant Crown land covered by claimant applications

This amendment is 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. 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.

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.

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. By subsection (4) this 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, including land acquired for a purpose.

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

If these requirements are met, the extinguishment by any prior act 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.

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.

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). That is the native title was subject to the grant for the period of the grant but revived in full when the grant ceased to have effect. Any historical freehold or leasehold interest will have ceased to have any effect, and therefore the native title rights will not have been extinguished by them or be subject to them in any sense.

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

Amendment (46) - Schedule 1, page 120 (after line 9)

Section 53 is a safety net providing just terms compensation, where the Act does not already do so. This amendment will ensure that the provision operates for 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.

Amendment (47) - Schedule 1, item 27, page 120 (lines 10 and 11)

This amendment removes Schedule 1, item 27. Item 27 is unnecessary as the provision to which it relates is reproduced in its correct form in Schedule 2, item 19, page 159 (lines 12 and 13).

Amendment (48) - Schedule 1, page 124 (after line 20), after item 31

This amends subsection 212(2) of the Native Title Act which 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 amendment 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.

Amendment (49) - Schedule 1, page 125 (line 4)

This amendment is to proposed section 214 which lists those instruments that are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901. The amendment to paragraph 214(a) adds determinations made under paragraphs 24GB(9)(c), 24HA(7)(a) and 24JB(6)(a) to the list of disallowable instruments. These paragraphs relate to new notification requirements.

Amendment (50) - Schedule 1, item 39, page 126 (lines 14 and 15)

This is a technical drafting change.

Amendment (51) - Schedule 1, item 39, page 128 (line 16) to page 129 (line 6)

This amendment is to proposed section 232B which defines the term 'Category A intermediate period act'. The 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 amendment (5) to section 23B.

Amendment (52) - Schedule 1, item 39, page 129 (lines 11 to 16)

This amendment is to section 232B which defines the term 'Category A intermediate period act'. The Bill already excludes from the definition acts that consist of the grant or vesting of any thing by or pursuant to legislation that provides for such grants or the vesting of such things only to, in or for the benefit of Aboriginal peoples or Torres Strait Islanders (see new paragraph (8)(a)). This amendment will also exclude: * 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 (new paragraph (8)(b)); and 9 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 (new paragraph (8)(c)).

By excluding such acts from the definition of 'Category A intermediate period act' these acts are removed from the operation of paragraph 2211(a) (which provides that Category A intermediate period acts extinguish native title). As a result of this amendment and an amendment to 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)).

Amendment (53) - Schedule 1, item 39, page 129 (after line 28)

This amendment is to section 232C which defines the term 'Category B intermediate
period act'. The Bill already excludes from the definition leases granted by or under
legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres
Strait Islanders (see subparagraph (b)(ii)). The amendment will also exclude from
this definition:
• a lease granted to a person to hold on trust for the benefit of Aboriginal peoples orTorres Strait Islanders (new subparagraph (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 (new subparagraph (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)).

Amendment (54) - Schedule 1, item 49, page 133 (line 3)

This amendment ensures that the definition of "Scheduled interest" does not include
grants under 'land rights' type legislation, grants on trust to Aboriginal peoples and
Torres Strait Islanders, or grants over such land.

Amendment (55) - Schedule 1, item 50, page 135 (lines 18 to 27)

This amends proposed section 25 1 C, which defines the term 'towns and cities' (an
expression used in new Division 3 Subdivision P).

The amendment provides that an area in the Northern Territory will only be a 'town
or city' if at 23 December 1996 it would have fallen within one of the descriptions
contained in paragraphs 25 1 Q3)(a), (b) or (c).

Proposed subsection 25 1 C as it appears in the Bill incorrectly applies the 23 December 1996 limitation to only those areas that fall within the description
contained in paragraph (a). This was a drafting error. The amendment ensures that
the 23 December 1996 limitation qualifies paragraphs (a), (b) and (c) of subsection
251Q3).

Amendment (56) - Schedule 1, item 59, page 138 (line 21)

This amendment is to the definition of 'public work' in section 253. The amendment
removes stock-routes from subparagraph (a)(ii) of the definition of 'public work'.
Only those stock routes covered by new subparagraph (a)(iia) (see amendment 57
below) will be 'public works'. Stock routes are added to subsection 212(2) by
amendment 48 above.
19

Amendment (57) - Schedule 1, item 59, page 138 (after line 21)

This amendment is to the definition of 'public work' in section 253. The amendment
inserts a new subparagraph (a)(iia) into the definition of 'public work'. The
amendment ensures that only stock routes that are validated by or in accordance with
Divisions 2 or 2A of Part 2 of the Native Title Act are 'public works'. Stock routes
are added to subsection 212(2) by amendment 48 above.

Amendment (58) - Schedule 2, item 9, page 141 (lines 9 to 15)

This amendment ensures that the limitation period for claims for compensation runs
from 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.

Amendment (59) - Schedule 2, item 19, page 146 (after line 25)

This amendment inserts 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. This amendment is
linked to amendment (45).

Amendment (60) - Schedule 2, item 19, page 148 (line 9)

This amendment requires the applicants to include details of any activities relating to
the exercise of native title rights and interests when they are providing details of the
rights and interests covered by the application.

Amendment (61) - Schedule 2, item 20, page 162 (line 8)

This amendment clarifies that the cultural and customary concerns of indigenous
peoples are to be taken into account by the Federal Court but not where to do so
would unduly prejudice the other parties. This 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.

Amendment (62) - Schedule 2, item 25, page 176 (line 13)

Complementary to the amendment above, this amendment clarifies that the cultural and customary concerns of indigenous peoples are to be taken into account by the National Native Title Tribunal but not where to do so would unduly prejudice the other parties.

Amendment (63) - Schedule 2, page 176 (after line 16)

New item 26A of Schedule 2 amends the table in section 110 which explains 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.

Amendment (64) - Schedule 2, item 34, page 182 (line 6)

Under this amendment, a mediation conference would ordinarily be held in private but the presiding member may direct otherwise where none of the parties objects.

Amendment (65) - Schedule 2, page 184 (lines 23 and 24)

Replacement item 40 of Schedule 2 repeals sections 147 to 149, which deal with the way in which the NNTT conducts inquiries. It also inserts new section 147 which gives the Tribunal the power to dismiss the application to which the inquiry relates at any stage of the inquiry.

Amendment (66) - Schedule 2, item 63, page 191 (lines 8 and 9)

Ibis amendment clarifies that the Registrar of the Federal Court must advise the Native Title Registrar whenever an application is withdrawn, even if that application has not been registered.

Amendment (67) - Schedule 2, item 63, page 193 (line 4)

This amendment inserts a reference to subsection 64(4) into subsection 190A(I) to ensure that the Registrar is obliged to consider amended applications.

Amendment (68) - Schedule 2, item 63, page 194 (after line 6)

New subsection 190A(5A) 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).

Amendment (69) - Schedule 2, item 63, page 194 (after line 18)

New subsection 190A(7) explains that when the Registrar is told that an application which 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.

Amendment (70) - Schedule 2, item 71, page 203 (line 12)

This amendment ensures that the function of holding an inquiry into certain matters can be performed by an equivalent body approved under section 207B.

Amendment (71) - Schedule 2, item 79, page 208 (line 8)

Replacement paragraph 225(a) requires a determination of native title to specify which persons, including each group of persons, hold the rights which make up the native title. The purpose of this paragraph is to make it 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. The amendments will ensure that determinations clearly identify who the native title holders are and how, in terms of group composition, they hold the native title.

Amendment (72) - Schedule 2, item 79, page 209 (after line 6)

This amendment adds a note 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.

Amendment (73) - Schedule 2, item 84, page 209 (lines 16 to 18)

This amendment removes an unnecessary provision of the Bill.

Amendment (74) - Schedule 2, item 87, page 210 (line 1)

This item corrects a drafting error consisting of an incorrect reference to another provision.

Amendment (75) - Schedule 2, item 98, page 212 (line 3)

This item corrects a drafting error consisting of an incorrect reference to another provision.

Amendment (76) - Schedule 2, item 98, page 212 (lines 5 and 6)

This item corrects a drafting error consisting of an incorrect reference to another provision.

Amendment (77) - Schedule 3, item 11, page 224 (before line 19)

New subsection 203AC(IA) 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".

Amendment (78) - Schedule 3, page 232 (after line 15)

This amendment gives the WIT, from the end of the transition period, the new
functions of assisting or mediating under any provision of the Act and entering into
contracts with representative bodies to assist with their dispute resolution functions.
Amendment (79) - Schedule 3, item 30, page 250 (after line 19)
Under this amendment, which is linked to amendment 78, the NNTT may 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.
Amendment (80) - Schedule 3, item 30, page 250 (lines 27 and 28)

This amendment is linked to amendment 81 and removes the requirement that grants
be made in respect of a financial year, or part of a financial year. Under amendment
8 1, grants may be able to be made for a period of up to 3 years.

Amendment (81) - Schedule 3, item 30, page 250 (after line 29)

New subsection 203Q3) allows grants by ATSIC to be made for a period of up to 3
years.

Amendment (82) - Schedule 3, item 30, page 251 (after line 20)

This amendment makes 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.

Amendment (83) - Schedule 3, item 30, page 253 (lines 13 and 14)

This amendment to the definition of "bank" 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.

Amendment (84) - Schedule 3, item 30, page 259 (after line 28)

New subsections 20313F(6) and (7) 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.

Amendment (85) - Schedule 3, item 30, page 259 (line 29) to page 260 (line 12)

This amendment 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.

Amendments (86) to (89) - Schedule 4, item 1, page 276 (line 5); Schedule 4, item 1, page 276 (line 10); Schedule 4, item 1, page 276 (line 11); Schedule 4, item 1, page 276 (line 14)

These amendments correct typographical errors.

Amendments (90) and (91) - Schedule 4, item 1, page 294 (lines 2 and 15)

These amendments change the reference to the "Irrigation Areas (Land Settlement) Act 193Y' to the "Irrigation Areas (Land Settlement) Act 1962". The Act concerned is a Act of the Queensland Parliament.

Amendment (92) - Schedule 5, page 324 (after line 13)

This inserts a reference to new Part 6A, which ensures that just terms compensation is payable for the effect of the Bill on native title rights, in the description of the contents of Schedule 5. It is linked to amendment (93).

Amendment (93) - Schedule 5, page 342 (after line 28)

New Part 6A deals with 'Just terms" compensation. New item 27A ensures that to the extent the Amendment Bill once enacted may result in the acquisition of property 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 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.

Request (1) - Schedule 5, page 343 (before line 1)

New item 27B makes an appropriation from the Consolidated Revenue Fund for the amounts of compensation that the Commonwealth may be liable to pay as a result of the Native Title Amendment Bill 1997 or any amendment of the Native Title Act 1993 made by that Bill.

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