Native Title Act 1993

This section applies if:

there is a proceeding in relation to an application for a determination of native title; and

at any stage of the proceeding after the end of the period specified in the notice given under section 66, agreement is reached on a proposed determination of native title in relation to an area (the determination area) that is part of, but not all of, the area covered by the application; and

all of the following are parties to the agreement:

the applicant;

each registered native title claimant in relation to any part of the determination area who is a party to the proceeding at the time the agreement is made;

each representative Aboriginal/Torres Strait Islander body for any part of the determination area who is a party to the proceeding at the time the agreement is made;

each person who holds an interest in relation to land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made;

each person who claims to hold native title in relation to land or waters in the determination area and who is a party to the proceeding at the time the agreement is made;

the Commonwealth Minister, if the Commonwealth Minister is a party to, or is intervening in, the proceeding at the time the agreement is made;

if any part of the determination area is within the jurisdictional limits of a State or Territory, the State or Territory Minister for the State or Territory if the State or Territory Minister is a party to the proceeding at the time the agreement is made;

any local government body for any part of the determination area who is a party to the proceeding at the time the agreement is made; and

the terms of the proposed determination are in writing and signed by or on behalf of each of those parties.

For agreements reached in relation to the whole of the area covered by the application, see section 87.

The requirements that a registered native title claimant be a party to the agreement and sign the terms of the proposed determination are satisfied if:

a majority of the persons who comprise the registered native title claimant are parties to the agreement and sign the terms, unless paragraph (b) applies; or

if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement and sign the terms—those persons are parties to the agreement and sign the terms.

The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement and signing the terms, as mentioned in paragraph (1A)(a). A failure to comply with this subsection does not invalidate the agreement or any signature.

A party to the agreement may file a copy of the terms of the proposed determination of native title with the Federal Court.

The Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the proposed determination of native title has been filed with the Court.

The Court may make an order in, or consistent with, the terms of the proposed determination of native title without holding a hearing, or if a hearing has started, without completing the hearing, if the Court considers that:

an order in, or consistent with, the terms of the proposed determination would be within its power; and

it would be appropriate to do so.

As the Court’s order involves making a determination of native title, the order needs to comply with section 94A (which deals with the requirements of native title determination orders).

Without limiting subsection (4), if the Court makes an order under that subsection, the Court may also make an order under this subsection that gives effect to terms of the agreement that involve matters other than native title if the Court considers that:

the order would be within its power; and

it would be appropriate to do so.

The jurisdiction conferred on the Court by this Act extends to making an order under subsection (5).

The regulations may specify the kinds of matters other than native title that an order under subsection (5) may give effect to.

In considering whether to make an order under subsection (4) or (5), the Court must take into account any objections made by the other parties to the proceedings.

If some or all of the parties to the proceeding have reached agreement on a statement of facts, one of those parties may file a copy of the statement with the Court.

Within 7 days after a statement of facts agreed to by some of the parties to the proceeding is filed, the Federal Court Chief Executive Officer must give notice to the other parties to the proceeding that the statement has been filed with the Court.

In considering whether to make an order under subsection (4) or (5), the Court may accept a statement of facts that has been agreed to by some or all of the parties to the proceedings but only if those parties include:

the applicant; and

the party that the Court considers was the principal government respondent in relation to the proceedings at the time the agreement was reached.

In considering whether to accept under subsection (11) a statement of facts agreed to by some of the parties to the proceedings, the Court must take into account any objections that are made by the other parties to the proceedings within 21 days after the notice is given under subsection (10).

A reference in subsections (9) to (12) to the parties to the proceeding includes a reference to the Commonwealth Minister if the Commonwealth Minister is intervening in the proceeding at the time a statement of facts is agreed.