Making a claimant application
A claimant application can be made by persons comprising the applicant, who are authorised by the native title claim group to make the application on behalf of the group.
To make a claimant application, a Form 1 Claimant Application must be completed and filed in the Federal Court. The application form indicates what type of information must be included in the application and any documents that must accompany the application.
Assistance in preparing an application
The Native Title Registrar can provide assistance to people who want to make a claim, with:
- information about native title and the native title process
- technical descriptions and maps of the area claimed
- preliminary assessments of draft applications
- land tenure information and searches of registers.
The NNTT cannot provide legal advice or financial assistance, or prepare applications for applicants.
Registration testing of claimant applications
In sections 190B and 190C there is a set of conditions that the Registrar must apply to all new claimant applications. This is known as the ‘registration test’. In summary, these conditions include:
- a sufficient description or a list of the persons in the native title claim group
- reasonable identification of the area claimed through a technical description and map
- a description of the native title rights and interests claimed so that they can be readily identified
- certification from a representative body or authorisation, with or without conditions, by all the persons in the claim group
- a sufficient factual basis for the rights and interests claimed, including about the group’s continued association with the area, their traditional laws and customs and their continued holding of native title in accordance with those traditional laws and customs
- information about a traditional physical connection of one or more members of the group with the area.
If all of the conditions are satisfied, the claim is registered on the Register of Native Title Claims.
Once a claim is registered, the native title claim group gains certain rights, including the right to negotiate and the right to oppose non-claimant applications in the area covered by their application. The native title claim group gains these rights as soon as a claim is registered, which is important because it can take a long time for a claim to be determined by the Federal Court.
The purpose of the registration test is to ensure only claims that meet certain requirements are registered, and only native title claim groups which have a satisfactory basis for their claim will gain those rights.
If a claim does not meet the requirements for registration, even after any review sought, it will not be registered on the Register of Native Title Claims. The Federal Court will consider whether the application should be finalised, such as through dismissal, or may proceed to make a determination of the claim.
Providing preliminary assessments
If assistance is requested, the Registrar can provide a written preliminary assessment of an application before it is filed in the Federal Court. A preliminary assessment will point out the parts of draft applications that might not meet particular conditions of the registration test. This gives applicants the opportunity to make changes to an application before filing in the Federal Court.
The Registrar may also provide a preliminary assessment during the registration test process but is not obliged to do so.
Registration test timeframes
Where a claimant application is affected by a particular notice, the Native Title Act set out timeframes that apply when making the registration test.
Where the application is affected by a s 29 future act notice, the Registrar must endeavour to apply the conditions of the test by the end of four months after the notification day specified in the future act notice.
Where the native title determination application is affected by a s 24MD(6B)(c) notice in relation to the compulsory acquisition or the construction of infrastructure associated with mining, the Registrar must endeavour to apply the registration test by the end of two months after the notice is given.
If those timeframes do not apply, the Registrar must apply the registration test as soon as practicable.
Written reasons for registration test decisions
The Registrar’s delegate makes a registration test decision by considering the application against each of the conditions set out in relevant sections of the Native Title Act.
The Registrar’s policy is to make reasons for all registration test decisions publicly available. See Search Applications and Determinations.
Review of registration decisions
There are two processes for seeking a review of a registration test decision. These are seeking a reconsideration decision by the Tribunal or applying to the Federal Court for a review of the decision.
Reconsideration
When a claimant application has not been accepted for registration, the Registrar must give the applicant written notice of the decision and a statement of reasons for the decision.
An applicant can apply to the NNTT for a reconsideration of the claim in the application under s 190E of the Native Title Act, by making an application in writing within 42 days of receiving the written notice of the decision, and stating the basis on which the reconsideration is sought.
When an application for reconsideration is made, the President of the NNTT will appoint a Member to reconsider the claim. The Member will consider the claim afresh against all of the conditions of the registration test. The Member must consider all the information that the Registrar was required to consider in applying the original test, and may also consider any other information they think is appropriate, including additional information provided by the applicant.
If the Member decides that the claim satisfies the conditions of the registration test, the Member will notify the Registrar that the claim must be accepted for registration and the details of the application will be entered on the Register of Native Title Claims.
If the Member decides that the claim does not satisfy the conditions of the registration test, the Member will notify the Registrar that the claim should not be registered and provide a statement of reasons to the applicant and Federal Court.
An application for a reconsideration of a claim can only be made once and cannot be made where the applicant has already applied to the Federal Court for a review of the decision. Contact the Federal Court for information on applying to the Federal Court for review.
To request a reconsideration, applicants can use the NNTT’s reconsideration application form and send their application to NNTT_Registrar@nntt.gov.au or claimsassistance@nntt.gov.au.
Federal Court Review
An application can be made to the Federal Court for review of the decision of the Registrar. The Federal Court has staff who can assist with procedural information about filing an application to have a judge review a registration test decision.
An applicant cannot apply to the Federal Court for review at the same time as the decision is being reconsidered by a Tribunal member.
Guidelines
The following resource may assist applicants understand the requirements of the registration test when preparing a claimant application, however should be treated as a guide only. There may be amendments to the Native Title Act or developments with the case law, which may not be referred in the resource.
Applicants will need to seek their own legal advice about these matters.
Native title claimant applications: a guide to understanding the requirements of the registration test
Amended applications
The Registrar assesses all amended claimant applications on a case-by-case basis to see if the registration test must be applied to the claim in the amended application.
The Registrar must apply the registration test to an amended claimant application, unless the effects of the amendments are limited to those listed in s 190A(6A). That provision permits some types of amendments without the need to reapply the registration test, including:
- reducing the area covered by the application;
- removing a native title right or interest from those claimed in the application;
- changing the name of the representative body for the area covered by the claim; and/or
- altering the address for service of the applicant.
The Registrar may also decide that the registration test does not need to be applied where the amendments are of a minor administrative nature, such as the correction of typographical errors.
Other amendments to claimant applications which do not trigger the registration test are:
- if the Federal Court makes orders to replace the applicant under s 66B, the Registrar must update the Register of Native Title Claims to amend the name/s of the member/s of the applicant, without re-applying the registration test;
- if the Federal Court makes orders under s 87A to determine part of the area covered by an application, the Registrar must update the Register of Native Title Claims to reflect the amendment to the area.
If the registration test is triggered but the amended application does not meet all of the conditions of the registration test, the Registrar must not accept it for registration. This means that if the claim was on the Register of Native Title Claims before the application was amended, it must be removed. Similarly, if the claim was previously not accepted for registration, but the amendments mean that the claim now meets all of the conditions of the registration test, the amended application will be entered on the Register of Native Title Claims.
While the Registrar will not provide advice about whether a proposed amendment to a claimant application will or will not trigger the registration test, an applicant may provide a submission to the Registrar regarding whether the amended application meets the exemptions to the registration test. An applicant may also request the Registrar to provide assistance in relation to whether a proposed amended application is likely to meet the requirements of registration.