Order dismissing an application relating to a future act
94C Order dismissing an application relating to a future act
Subject to subsections (2) and (3), the Federal Court must, on the application of a party or on its own motion, dismiss an application made by a person under section 61 if:
the application is for a determination of native title in relation to an area; and
it is apparent from the timing of the application that it is made in response to a future act notice given in relation to land or waters wholly or partly within the area; and
the future act requirements are satisfied in relation to each future act identified in the future act notice; and
either:
the person fails to produce evidence in support of the application despite a direction by the Court to do so, or to take other steps to have the claim sought in the application resolved despite a direction by the Court to do so; or
in a case to which subparagraph (i) does not apply, the Court considers that the person has failed, within a reasonable time, to take steps to have the claim sought in the application resolved.
For the purposes of paragraph (1)(b), it is apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice to which the current law applies if:
the future act notice is given in relation to land or waters wholly or partly within the area; and
the application is made during the period of 3 months after the notification day specified in the future act notice; and
the person becomes a registered native title claimant in relation to any land or waters that will be affected by the act, before the end of 4 months after the notification day specified in the future act notice.
For the purposes of paragraph (1)(b), it is apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice to which the pre‑1998 law applies if:
the future act notice is given in relation to land or waters wholly or partly within the area; and
the person becomes a registered native title claimant in relation to any land or waters that will be affected by the act, within the period of 2 months starting when the notice is given.
The regulations may prescribe, for the purposes of paragraph (1)(b), other circumstances in which it is taken to be apparent from the timing of an application by a person for a determination of native title in relation to an area that it is made in response to a future act notice, including circumstances in which it is taken to be apparent in relation to a future act notice given under alternative provisions.
For the purposes of paragraph (1)(c), the future act requirements are satisfied in relation to a future act notice to which the current law applies if one of the following paragraphs is satisfied in relation to each future act identified in the notice:
subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;
a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;
native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);
an agreement of the kind mentioned in paragraph 31(1)(b) is made;
a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with;
a determination is made under section 36A or 38 that the act must not be done;
a determination that the act may be done, or may be done subject to conditions being complied with or must not be done, is declared to be overruled in accordance with section 42;
a circumstance occurs in which, under the regulations, the future act requirements are satisfied.
For the purposes of paragraph (1)(c), the future act requirements are satisfied in relation to a future act notice to which the pre‑1998 law applies if one of the following paragraphs is satisfied in relation to each future act identified in the notice:
subsection 32(2) of the pre‑1998 law (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;
a determination is made under subsection 32(4) of the pre‑1998 law that the act is an act attracting the expedited procedure;
a copy of an agreement that the act may be done, or may be done subject to conditions being complied with, is given to the arbitral body under section 34 of the pre‑1998 law;
a determination is made under section 38 of the pre‑1998 law that the act may be done, or may be done subject to conditions being complied with;
a determination is made under section 38 of the pre‑1998 law that the act must not be done;
a determination that the act may be done, or may be done subject to conditions being complied with or must not be done, is declared to be overruled in accordance with section 42 of the pre‑1998 law;
a circumstance occurs in which, under the regulations, the future act requirements are satisfied.
The regulations may prescribe, for the purposes of paragraphs (1D)(h) and (1E)(g), other circumstances in which future act requirements are satisfied.
The regulations may prescribe circumstances in which future act requirements are satisfied in relation to a future act notice given under alternative provisions.
The Court must not dismiss the application without first ensuring that the person is given a reasonable opportunity to present his or her case about why the application should not be dismissed.
The Court must not dismiss the application if there are compelling reasons not to do so. However, the fact that:
a subsequent future act notice has been given that specifies all or part of an area that is included in the area covered by the application; and
paragraph (1)(d) is not satisfied in relation to each future act identified in the subsequent future act notice;
is not, of itself, a compelling reason.
To avoid doubt, the Court’s dismissal of an application under this section does not affect any rights, liabilities or obligations of a person under:
an agreement of the kind mentioned in paragraph 31(1)(b); or
a determination made under subsection 32(4) or section 36A, 38 or 42; or
an agreement made in accordance with, or a determination made under, any alternative provisions that are equivalent to the provisions mentioned in paragraphs (a) and (b).
To avoid doubt, this section does not affect the Court’s power to dismiss an application under the Federal Court of Australia Act 1976.
In this section:
alternative provisions means provisions provided for by a law of a State or Territory in respect of which the Commonwealth Minister has made a determination under paragraph 43(1)(b).
future act notice means:
a notice of a future act given under section 29; and
a notice of a future act given under alternative provisions.
future act notice to which the current law applies means a future act notice to which the provisions in Subdivision P of Division 3 of Part 2 of this Act apply.
future act notice to which the pre‑1998 law applies means a future act notice to which the provisions in Subdivision B of Division 3 of Part 2 of the Native Title Act 1993 apply, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act).
pre‑1998 law means the Native Title Act 1993, as in force immediately before the commencement of the Native Title Amendment Act 1998 (including as it applies in accordance with Schedule 5 of that Act).
This provision refers to the regulations (The regulations may prescribe
, the regulations
). Made under this Act:
- Native Title (Prescribed Bodies Corporate) Regulations 1999 · under s 59 and 215
- Native Title (Representative Bodies — Audit of Financial Statements) Regulations 2005 · under s 203DC and 215(1)
11 more instruments made under this Act are listed on the Act’s overview.
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