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Glossary

access agreement
an agreement between native title holders and non-native title holders about access to areas of land and waters where native title may exist or has been recognised. Most often used in relation to non-exclusive pastoral leases (see also Part 2 Division 3 Subdivision Q Native Title Act).
 
alternative procedure agreement
a type of indigenous land use agreement.
 
Amendment Act
an Act of the Australian Parliament that amended the Native Title Act.
 
amendment
a change or alteration to a document, such as an application to a court. Amendment of a claimant application will usually trigger the application or re-application of the registration test, however there are exceptions (see ss 64(4) and 190A Native Title Act).
 
applicant
the person or persons who make an application for a determination of native title or a future act determination.
 
arbitration
the hearing or determining of a dispute between parties
 
area agreement
a type of indigenous land use agreement.
 
authorisation
the process native title holders must use to give permission for:
  • an area agreement (a type of indigenous land use agreement) to be made on their behalf; or
  • an application for a determination of native title or compensation application to be made on their behalf and to give the applicant the power to deal with matters arising in relation to that application.
 
body corporate agreement
a type of indigenous land use agreement.
 
certification
The process by which the relevant native title representative body or bodies or appropriate native title service for an area, can certify the authorisation requirements of the Act have been met (s 203BE NTA) in relation to:
  • applications for a determination of native title; and
  • area agreements (a type of indigenous land use agreement).
Native title service providers may also be able to perform the certification function (s 230FEA NTA).
 
claimant application/claim
see native title claimant application/claim
 
coexistence
the existence and exercise of native title rights alongside the rights of others over the same area of land or waters. For example, native title rights to go onto land and hold ceremonies may ‘coexist’ with the rights of a pastoral leaseholder to graze cattle. Coexistence is about sharing the land and waters in a way that recognises everyone's rights and interests in the area.
 
common law holders
the people the Federal Court proposes to include in a determination of native title as the native title holders (ss 253 and 56(2) NTA).
 
compensation application
an application made by Indigenous Australians seeking compensation for loss or impairment of their native title.
 
connection
the relationship that must be shown between Aboriginal people and Torres Strait Islanders with the land and/or waters over which they want native title recognised. To establish ‘connection’ the native title group must show they have continued to observe and acknowledge, in a substantially uninterrupted way, the traditional laws and customs that give rise to their connection with the claim area, from the time of the assertion of sovereignty by the British to the present day (s 223(1)(b) NTA).
 
consent determination
see determination
 
crown land
see Unallocated State land
 
delegate
an employee of the National Native Title Tribunal given power to make decisions on behalf of the Native Title Registrar via a delegation (s 99 NTA).
 
determination
a decision by an Australian court or other recognised body that native title does exist or does not exist.  A determination is made either when parties have reached an agreement after mediation (consent determination) or following a trial process (litigated determination).
 
directions
Formal binding instructions to the parties from a court or tribunal made as part of the management of the case.
 
disposition of native title matters
the rate at which native title applications are determined or otherwise dealt with, so they are no longer in the system.
 
expedited procedure
this refers to the fast-tracking process for future acts that might have minimal impact on native title, such as the grant of some exploration and prospecting licenses. If this procedure is used, and ‘no objection’ is lodged and the future act can be done without the normal negotiations with the registered native title parties required by the Native Title Act.
 
expedited procedure objection application consent determination
a decision by the National Native Title Tribunal that the expedited procedure (fast-tracking) does or does not apply to doing a certain future act. This decision is made when parties have reached agreement.
 
extinguishment
this term is used when Australian law does not recognise native title rights and interests because some things governments did, or allowed others to do in the past, have made recognition legally impossible. These things include the passing of laws or the grant of other interests inconsistent with the continued enjoyment of native title.
Native title is a bundle of rights. Complete extinguishment is when the whole bundle of rights is extinguished. Partial extinguishment is when one or more specific rights are extinguished.
As a general rule, once they are extinguished, native title rights can never be recognised again under Australian law. However, in certain circumstances, the Native Title Act allows the courts to ignore the effect of extinguishment. Generally, this may happen if, at the time the application is made, the relevant area is:
  • vacant Crown land or unallocated State land (and not subject to reservation etc. for a public purpose); 
  • a pastoral lease held by, or for, the claimants or; 
  • specifically set aside for, or held for the benefit of, Aboriginal People or Torres Strait Islanders (for example, under land rights legislation or as a reserve for the use and benefit of Indigenous Australians).
 
freehold test
this test requires that, when certain future acts are proposed, native title holders must be given the same procedural rights as those who hold ‘ordinary title’. In everywhere but the Australian Capital Territory and the Jervis Bay Territory, ‘ordinary title’ means freehold (s 253, Subdivision M of Part 2 Division 3 NTA).
 
future act
a proposed activity on land and/or waters that may affect native title.
 
future act consent determination
a decision by the National Native Title Tribunal that a future act may proceed and whether conditions apply to the doing of the act. The decision is made when parties have reached agreement about the act and have consented to those conditions (if any).
 
future act determination application
An application requesting the Tribunal to determine whether a future act can be done (with or without conditions).
 
future act determination
a decision by the National Native Title Tribunal either that a future act cannot be done, or can be done with or without conditions. In making the determination, the Tribunal takes into account (among other things) the effect of the future act on the enjoyment by the native title party, of their registered rights and interests, and the economic or other significant impacts of the future act and any public interest in the act being done.
 
‘good faith’ negotiations
all negotiation parties must negotiate ‘in good faith’ in relation to the doing of future acts to which the right to negotiate applies (s 31(1)(b) NTA). Each party and each person representing a party, must act in good faith in relation to the conduct of the mediation of a native title application (s 136B(4)).
 
grantee party
the person or corporation who has applied to the government for it to do a future act in relation to which the right to negotiate applies. Most commonly this is for the grant of mining tenements such as exploration licences and mining leases (s 29(2)(c) NTA).
 
ILUA
Indigenous land use agreement, a voluntary, legally binding agreement about the use and management of land or waters, made between one or more native title groups and others (such as miners, pastoralists or governments).
 
inquiry
the Native Title Act provides for the National Native Title Tribunal to undertake inquiries in relation to:
  • (a) future act determination applications or an expedited procedure objection applications (ss 32, 35, 75, and 139(b));
  • (b) special inquiries at the direction of the Commonwealth Minister in relation to a particular matter or issue relating to native title (ss 137, and 139(c));
  • (c) an objection to the registration of an alternative procedure agreement (ss 24DJ(1), 77A, and 139(d));
  • (d) native title applications concerning the whole or part of a proceeding that has been referred to the Tribunal for mediation under s 86B, and raises a matter or issue relevant to the determination of native title under s 225 (s. 138A).

In some cases an inquiry will be made based on written evidence submitted to the Tribunal, without holding an inquiry hearing.

 
inquiry hearing (future act)
when the National Native Title Tribunal hears evidence and submissions by parties who are in a right to negotiate inquiry (i.e. a future act determination application inquiry or an expedited procedure objection application inquiry). In some cases a determination will be made, based on written evidence submitted to the Tribunal, without holding an inquiry hearing.
 
intermediate period act
generally, it is an act (excluding most legislative acts) that:
  • was done between 1 January 1994 (the date when the NTA commenced) and 23 December 1996 (the date of the Wik decision) (inclusive);
  • was over an area that is, or was, freehold or leasehold, or an area on which a public work is, or was, situated; and
  • was invalid to any extent because of the existence of native title (s 232A NTA).
 
litigated determination (claimant)
see determination
 
mediation
the process of bringing together all people with an interest in an area covered by an application to help them reach agreement.
 
mediation (claimant)
the process of bringing together people with an interest in an area covered by a native title claimant application who are parties to the application, to help them to reach agreement about such things as:
  • whether or not native title exists;
  • who holds the native title;
  • what the native title rights and interests are;
  • what other interests exist in the area; and
  • the relationship between native title and other rights and interests.
Mediation allows everyone involved to explore the potential for agreement, including agreement about a consent determination or an indigenous land use agreement.
 
mediation (future act)
a process which allows negotiation parties, with the assistance of a mediator, to discuss their interests in the area, identify the issues, consider alternatives and explore ways to reach agreement about whether a future act should be done. Mediation processes are useful where negotiation is not progressing.
 
member
a person appointed by the Governor-General as a member of the National Native Title Tribunal under the Native Title Act. Members are classified as presidential and non-presidential. Some members are full-time and others are part-time appointees.
 
National Native Title Register
the record of native title determinations.
 
National Native Title Tribunal
See Tribunal
an independent statutory body established under s 107 Part 6 of the Native Title Act to assist people to resolve native title issues. The Tribunal has a number of powers and functions under the Act including:
  • mediating between the parties to native title applications at the direction of the Federal Court (Part 6, Divs 4 to 4AA, Division 5, Subdiv AA);
  • acting as an arbitrator in situations where the people cannot reach agreement about certain future acts, such as mining projects (In South Australia the Tribunal only performs this role in relation to the grant of petroleum tenements. The Supreme Court and the Environment, Resources and Development Court undertake this function in relation to the doing of certain other future acts under the alternate right to negotiate provisions that operate in South Australia);
  • helping people to negotiate indigenous land use agreements (ss 24BF, 24CF and 24DG) and determining any valid objection to the registration of an Alternative Procedure Agreement (a type of ILUA) (Part 6 Division 5 NTA).
 
native title
see native title rights and interests
the communal, group or individual rights and interests of Aboriginal peoples and Torres Strait Islanders in relation to land and waters, possessed under traditional law and custom, by which those people have a connection with an area which is recognised under Australian law (s 223 NTA).
 
native title application
an application for a determination of native title, a revised determination of native title or a compensation application under s 61 of the Native Title Act.
 
native title claimant application/claim
see claimant application/claim
an application made for the legal recognition of native title rights and interests held by Indigenous Australians.
 
native title determination
see determination
a decision by an Australian court or other recognised body that native title does or does not exist.  A determination is made either when parties have reached an agreement after mediation (consent determination) or following a trial process (litigated determination).
 
native title determination application/claim
a claimant application or non-claimant application seeking a determination of native title.
 
native title holder see also prescribed body corporate (PBC)
a person who has native title rights and interests over a particular area of land or waters or, where there has been a determination of native title, and a prescribed body corporate (PBC) is registered on the National Native Title Register as holding native title rights and interests on trust (s 224 NTA).
 
native title party
this term is often used to refer to the Indigenous parties to a variety of agreements or participants in legal actions or proceedings. However, under the Act it also has a specific definition in relation to ‘right to negotiate’ applications. In that context it means the registered native title claimants and registered native title bodies corporate, that meet certain statutory requirements (ss 253, 29(2) and 30 NTA).
 
Native Title Registrar
see Registrar
A statutory office holder who performs a range of native title related functions and also assists the President in the management of the administration of the Tribunal.
 
Native Title Representative Body
see Representative Aboriginal/Torres Strait Islander Body
organisations recognised and funded by the Commonwealth government to perform a variety of functions under the Native Title Act. These functions include assisting native title holders to access and exercise their rights under the Act, certifying applications for determinations of native title and area agreements, resolving intra-indigenous disputes, agreement making and ensuring that notices given under the Act are bought to the attention of the relevant people.
 
native title rights and interests
see native title
the communal, group or individual rights and interests of Aboriginal people and Torres Strait Islander people in relation to land and waters, possessed under traditional law and custom, by which those people have a connection with an area which is recognised under Australian law (s 223 NTA).
 
negotiation party
an individual, group or organisation that may participate as a party to proceedings in a right to negotiate inquiry, namely the:
  • government party (usually a state or territory government who proposes to do the future act);
  • grantee party (the person who has requested the future act be done); or
  • native title party (registered native title bodies corporate or registered native title claimants) for the area where it is proposed the future act be done.
 
non-claimant application
An application made by a person, who does not claim to have native title but who seeks a determination that native title does or does not exist. 
 
non-extinguishment principle
where an act, such as a lease, that would normally wholly or partially extinguish native title, does not have that effect. Rather any inconsistent native title rights and interests are merely suspended while the particular act has effect (s 238 NTA).
 
notification
the process by which people, organisations and/or the general public are advised by the relevant government of their intention, to do certain acts or by the National Native Title Tribunal that certain applications under the Native Title Act have been made.
 
notification day
the 'notification day' is, among other things, the day identified in the notice of various applications under the Native Title Act as the day from which the notification period will often be calculated. A notification day is included in most of the notices given by the Native Title Registrar, and those issued under s 29 NTA by the relevant state or territory governments.
 
notification period
the period of time during which certain persons can do certain things e.g. notify the Federal Court of their intention to become a party to a native title application (s 61 NTA) or lodge an objection to the registration of an uncertified area agreement (s 24CI NTA). 
notification periods varies depending on the type of application the notice is being issued in relation to.
Some things can only be done after the notification period has ended such as the registration of an indigenous land use agreement.
 
NTA
Native Title Act 1993 (Cth) as amended by amendment Acts.
 
objection application (future act)
registered native title claimants and registered native title bodies corporate (RNTBC) can object to a tenement grant being fast-tracked using the expedited procedure. They have four months from the notification day to lodge an objection. If the objection is successful, the development cannot go ahead without the normal negotiations required by the NTA.
 
objection (ILUA)
any person claiming to hold native title can object to the registration of an:
  • area agreement, on the basis that the requirements in relation to the certification of the application have not been met (ss 24CI and 203BE(5)(a) and (b)); or
  • alternative procedure agreement, on the grounds that it would not be fair and reasonable to register the agreement (s 24DJ(1)).
There are other potential bars to the registration of ILUAs but they are not formal ‘objections’.
 
‘On country’
description applied to activities that take place on the relevant area of land, for example mediation conferences or Federal Court hearings can take place on or near the area covered by a native title application.
 
party
a person or organisation who either:
  • enters into an agreement, such as an indigenous land use agreement, with another person or organisation; or
  • is a participant in a legal action or proceeding such as an application for a determination of native title.
 
past act
generally speaking, a ‘past act’ is a legislative act done before 1 July 1993 or any other act done before 1 January 1994, which is invalid to any extent because of the existence of native title (s 228 NTA).
 
peak body
organisations which represent people with common interests in relation to native title e.g. a farmers’ federation, fishing industry councils, native title representative bodies and local government associations.
 
preliminary conference
a meeting of the parties to a future act proceeding, convened by the National Native Title Tribunal member appointed to an inquiry, at which directions may be made and information sought from the parties about issues relevant to the inquiry. A preliminary conference may, with leave, be conducted by telephone or other means of communication.
 
prescribed body corporate (PBC)
prescribed body corporate, a body nominated by native title holders which will represent them and manage their native title rights and interests once a determination that native title exists has been made. 
 
previous exclusive possession act (PEPA)
broadly, these include valid or validated:
  • grants of freehold;
  • ‘scheduled interests’ (see Schedule 1 NTA);
  • exclusive leases;
  • some vestings under state or territory legislation; and
  • the construction or establishment of public works, which were done before 24 December 1996 (s 23B NTA).
PEPAs wholly extinguish native title (s 23C NTA).
 
previous non-exclusive possession acts (PNEPA)
previous non-exclusive possession acts are valid or validated grants of non-exclusive agricultural or pastoral leases that took place:
  • before 24 December 1996; or
  • after 23 December 1996 (the date of the Wik decision), and would be PNEPA except that they were not done on or before 23 December 1996 but were done:
    • under a legally enforceable right, offer or arrangement made on or before 23 December 1996; or
    • in good faith as the result of an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996 of which there is reasonably contemporary written evidence (ss 23F(2) and (3) NTA).
If the effect of such a lease on native title rights and interests at common law would be to extinguish those rights and interests s 23G provides that under the Native Title Act the effect is the same. If that is not the effect at common law, the lease will merely suspend the native title rights and interests for as long as it is in force. (If the grant of the lease is also a category A past act then native title is fully extinguished.)
 
procedural right
the right to be notified, to object, be consulted, to comment or the right to negotiate as part of the procedures to be followed under the Native Title Act, when certain future acts are proposed (s 253 NTA).
 
reconsideration by the Tribunal
if a claim is not accepted for registration under s190A of the Native Title Act, then (in some cases) the applicant can ask the National Native Title Tribunal to reconsider the claim made in the application for registration (s 190E NTA).
 
Register of Indigenous Land Use Agreements
a record of all indigenous land use agreements that have been registered.  An ILUA can only be registered when there are no obstacles to registration or when those obstacles have been resolved.  
 
Register of Native Title Claims
the record of native title claimant applications that have been filed with the Federal Court, referred to the Native Title Registrar and generally have met the requirements of the registration test. 
 
registered native title body corporate (RNTBC)
a prescribed body corporate (PBC) nominated by native title holders to represent them and manage their native title rights and interests once a determination that native title exists has been made. Once the court determines that the corporation is to be the PBC, it is entered onto the National Native Title Register as a registered native title body corporate (ss 193(2)(e) and 253 NTA).
 
registered native title claimant/s
a person or persons whose name(s) appear as ‘the applicant’ in relation to a claim that has met the conditions of the registration test and is on the Register of Native Title Claims.
 
Registrar
See Native Title Registrar
A statutory office holder who performs a range of native title related functions and who also assists the President in the administration of the management of the Tribunal.
 
registration test
a set of conditions under the Native Title Act that is applied to native title claimant applications. If an application meets all the conditions, it is included in the Register of Native Title Claims, and the claimants then gain the right to negotiate, together with certain other rights, while their application is under way. 
 
regulation
A form of delegated legislation i.e. legislation made by a non-parliamentary body acting according to an Act of parliament where things are or may be, prescribed by regulations (ss 215 and 253 NTA).
 
Representative Aboriginal/Torres Strait Islander Body
see Native Title Representative Bodies
RATSIBs, also known as Native Title Representative Bodies (NTRBs) or representative bodies (rep bodies). These organisations are recognised and funded by the Commonwealth Government to perform a variety of functions under the Native Title Act. These functions include assisting native title holders to access and exercise their rights under the Act, certifying applications for determinations of native title and area agreements (ILUA), resolving intra-indigenous disputes, agreement making and ensuring that notices given under the Act are bought to the attention of the relevant people.
 
revised native title determination application
the revocation or variation of an existing approved determination of native title (ss13(1) and 61 NTA).
 
right to negotiate
the right of registered native title claimants or registered native title body corporates to be involved in discussions about— but not veto—certain types of future acts (usually the grant of a mining tenement but occasionally an act of compulsory acquisition). Where the right to negotiate applies, negotiations ‘in good faith’ must occur before the future act can be done. If no agreement is reached an application can be made to the National Native Title Tribunal to determine whether the act can be done and if so under what, if any, conditions (Subdivision P Division 3 Part 2 NTA).
 
scheduled interest
an interest (usually a lease of some kind) that is listed in Schedule 1 of the Native Title Act and falls within the definition found in s 249C NTA.
 
status conference (future act)
a meeting of the parties, similar to the preliminary conference, which is held four weeks before the first direction is due. The purpose of the status conference is to ascertain whether negotiations have been, or are likely to be, successful.
 
strike out
a court order that terminates or dismisses a proceeding before the court, usually because the case is untenable. Under the Native Title Act, the Federal Court has a specific power to strike out a native title determination application, a compensation application or a revised native title determination application, if it does not comply with the requirements for making such an application (s 84C NTA).
 
technical amendments
the Native Title Amendment (Technical Amendments) Act 2007 (Cth) most of which came into force on 1 September 2007.
 
The Act
Native Title Act 1993 (Cth) as amended by amendment Acts.
 
transitional provisions
when an Act is amended there is often a need to provide for the transition of the operation of some sections in the pre-amended Act and the amended Act. These are called transitional provisions. Transitional provisions are included in the Native Title Amendment Act 1998, the Native Title Amendment Act 2007 and the Native Title Technical Amendments Act 2007 and among other things, have effect on the application and timing of the s 190A registration test.
 
Tribunal
see National Native Title Tribunal
 
unallocated state land
this is land held by the crown which may be able to be claimed under the Native Title Act.
 
unopposed approved determination of native title (claimant)
a decision by the Federal Court or High Court of Australia or a recognised body that native title does or does not exist as a result of a native title application, not contested by another party. To date the only bodies recognised under s 207A of the Native Title Act are the Supreme Court of South Australia and the Environment, Resources and Development Court of South Australia.
 
vacant crown land
this generally means land that is not held under private ownership. It might be subject to rights granted by the Crown under legislation, such as a mining tenement. It may also be subject to native title.
 
Wik decision
the decision by the High Court in Wik Peoples v State of Queensland (1996) 187 CLR 1 that, depending on the terms of the lease, non-exclusive native title rights and interests could co-exist with the rights of non-exclusive pastoral leaseholders.
 
without prejudice privilege
a legal privilege which may attach to discussions held or documents produced during mediation or negotiations, aimed at resolving a claim or matter by agreement. The privilege generally prevents the content of those discussions and documents from being used as evidence in any subsequent court action.
Mediation conferences under the Native Title Act are ‘without prejudice’ but only in relation to proceedings before the Federal Court unless the parties agree otherwise (s 136A(4) NTA).