Native Title Act 1993

One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom.

The Federal Court is to take the following steps in making the determination:

first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders) to indicate whether the common law holders intend to have the native title held in trust by:

nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and

including with the nomination the written consent of the body corporate; and

secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and

thirdly, if the common law holders do not give the nomination within the period, the Federal Court must determine that the rights and interests are to be held by the common law holders.

On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders.

The regulations may also make provision in respect of:

the following matters relating to the holding in trust of the native title rights and interests:

the functions to be performed by the body corporate;

the nature of any consultation with, or other role for, the common law holders;

the circumstances in which the rights and interests may be surrendered, transferred or otherwise dealt with;

the determination of any other matter by the Federal Court;

any other matter; and

the replacement of the trustee where the common law holders wish the trustee to be replaced; and

the determination by the Federal Court of a prescribed body corporate to replace the trustee, and any other matter in relation to the replacement of the trustee; and

the termination of the trust where:

the common law holders wish the trust to be terminated; or

a liquidator is appointed for the body corporate; and

the determination by the Federal Court of a prescribed body corporate to perform the functions mentioned in subsection 57(3) once the trust is terminated; and

any matter in relation to the termination of the trust, the performance of those functions and the transition from the trust arrangement to the new arrangement, including the determination of those matters by the Federal Court.

Subject to subsection (6), native title rights and interests held by the body corporate are not able to be:

assigned, restrained, garnisheed, seized or sold; or

made subject to any charge or interest; or

otherwise affected;

the incurring, creation or enforcement of any debt or other liability of the body corporate (including a debt or liability owed to the Crown in any capacity or to any statutory authority); or

any act done by the body corporate.

Subsection (5) does not apply if the incurring of the debt, creation of the liability or doing of the act was in connection with a dealing with the native title rights and interests authorised by regulations for the purposes of paragraph (4)(c).

The regulations may make provision in respect of:

the determination by the Federal Court of a prescribed body corporate to hold the rights and interests from time to time comprising the native title in trust for the common law holders where:

a determination is made, either under this section or under regulations made for the purposes of this section, that the rights and interests are to be held by the common law holders; and

the common law holders wish a prescribed body corporate to instead hold those rights and interests in trust; and

the functions to be performed by the prescribed body corporate, once determined; and

the nature of any consultation with, or other role for, the common law holders; and

the circumstances in which the rights and interests may be surrendered, transferred or otherwise dealt with; and

any other matter in relation to the holding in trust of the native title rights and interests, and the transition from the former to the new arrangement, including the determination of the matter by the Federal Court.