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Editors --- "National Native Title Tribunal - Procedures for Applications for Native Title Determination and Compensation - Digest" [1996] AUIndigLawRpr 5; (1996) 1(1) Australian Indigenous Law Reporter 106

National Native Title Tribunal
Procedures for Applications for Native Title Determination and Compensation

Original Issue: 16 May 1994
Revised Issue: 12 September 1994
Second Revised Issue: 8 September 1995

Revised procedures for Applications for Native Title Determination and Compensation came into effect from 8 September 1995. These procedures were issued by the Honourable Justice French, President of the National Native Title Tribunal. They were issued by way of amendment to the revised procedures issued on 12 September 1994. The original procedures were issued on 16 May 1994.

The recently revised procedures are reproduced below. New elements are shown in italics.

Appendix A, also reproduced below, is a set of guidelines in relation to applications over freehold and leasehold land.

Pursuant to s.123(1)(e) of the Native Title Act 1993 I direct that the following procedures, as revised with effect from
8 September 1995, be adopted by the National Native Title Tribunal generally in respect of applications for the determination of Native Title, the revocation or variation of an approved determination and applications for compensation.

1. Introductory

1. [1] The following procedures will be subject to modification in the light of experience and submissions or suggestions from persons affected by work of the Tribunal.

1. [2] These procedures apply to the following kinds of applications:

(a) Applications under sub-s.13(1) for a determination of Native Title.

(b) Applications under sub-s.13(1) for the revocation or variation of an approved determination of Native Title.

(c) Applications under sub-s.50(2) for a determination of compensation.

1. [3] The procedures are to be applied as guidelines for the lodgment and processing of applications, the conduct of
mediation conferences and inquiries in relation to applications and the making of determinations. Subject to the requirements of the Native Title Act 1993 they may be varied or departed from in any case in which the Native Title Registrar or a Member of the Tribunal thinks it appropriate to permit such variation or departure.

2. Lodgment and Registration of Applications

2. [1] An application must be in the form prescribed in the Regulations for that class of application.

2. [2] The applicant or applicants must be a natural person or persons claiming to hold native title either alone or with others.

2. [3] The Tribunal will make available printed forms of application which comply with the requirements of the Regulations.

2. [4] An application that substantially complies with the Regulations will be received by the Registrar so that it may be considered for acceptance [end of sentence deleted]. If the application is a non-claimant application for a determination of Native Title or an application for compensation it will be recorded on a schedule of non-Registrable Applications.

2. [5] If an application lodged with the Tribunal does not substantially comply with the requirements of the Regulations the application will be returned to the applicant as soon as possible. The applicant will be advised of the deficiencies by Tribunal staff and requested to submit a new or amended application. The applicant may nevertheless insist upon the application being received by the Registrar and assessed for acceptance in accordance with the provisions of the Act and these procedures.

2. [6] Where an applicant for a native title determination claims native title rights and interests over an area of land or waters which differ from one part of the area under claim to another, the applicant should specify each such part and the native title rights and interests claimed for it.

2. [7] Where an application has been received by the Registrar, a summary of the application will be made available for public inspection excluding information that the Registrar has been requested by the applicant to keep confidential and where the Registrar is satisfied that it would not be in the public interest to disclose the information prior to a decision on whether the application should be accepted. Copies of the application may be provided, at the discretion of the Registrar, to interested parties.

2. [8] After receipt of an application that a person or persons hold Native Title in relation to a specified area of land or waters, the Registrar will record details of the application in the Register of Native Title Claims.

2. [9] A receipted application may be removed from the Register: if it has been referred to a Presidential member and rejected and an appeal against the rejection has been lodged and dismissed; or if it has been referred to a Presidential member and rejected and the time for an appeal has expired and no appeal has been lodged.

2. [10] [Formerly para 8.2] Upon recording the details of such an application, the Registrar will decide whether, in relation to any specific information included in the application, it would not be in the public interest for that information to be available to the public and shall take steps to maintain the confidentiality of that part and the names and addresses of persons whom it is claimed hold Native Title other than the name and address for service of a person who is taken to be a claimant (Section 188).

2. [11] [Formerly para 8.3] In respect of any application under s. [61] which has been accepted and, subject to paragraph 2. [8] of these procedures, the Registrar shall place a copy of the application (except for any details excluded from public inspection) and supporting materials on a file to be designated the Open File in respect of that application. Any material subsequently lodged with or obtained by the Tribunal in relation to that application and correspondence between the Tribunal and parties to the application or persons seeking to become parties shall also be placed on the Open File, subject to any direction by a Presidential member or the Registrar that particular information be excluded.

2. [12] [Formerly para 8.4] The Registrar may direct that any part of the material lodged with the Tribunal in relation to an application be placed on a file to be designated the Confidential File for that application and may direct that the contents of any document on the Confidential File not be disclosed or not be disclosed except in such manner or to such persons as the Tribunal directs (Section 65(1) and 155(b)).

2. [13] [Formerly para 8.5] Any material placed on the Open File is to be available for public inspection and copying.

3. Map and Land Description Specifications

3. [1] Maps provided with the application should include a single map clearly delineating the entire external boundaries of the claim. (If feasible this can be done on A4 size paper). The maps should identify all areas claimed, and similarly, all areas within the external boundary which are not being claimed (for example, freehold areas) need to be identified. The maps should show cadastral (survey) boundaries if possible, and include relevant topographic (natural and artificial) features, particular [sic] where these are important in defining the exact area of the claim. Colour coding of various tenures, for example freehold, leasehold, special leases, conservation reserves and Aboriginal reserves will assist in the acceptance process. Any waters claimed should also be colour coded.

For smaller claims, an accompanying map showing the claim area in a regional setting should also be provided. Claims within closely settled areas should be drawn at a scale which allows identification of all holdings within that area. A list of particular State/Territory information requirements is to be published in a separate appendix to these procedures,

3. [2] The written description of the claim area should include a clear statement of the external boundaries of the claim and definitions of areas within these external boundaries where they are not being claimed. Reference to map co-ordinates will assist in acceptance of the claim. A clear reference indicating that the claimed area does not include claim to freehold land will expedite the acceptance stage.

4. Amendment of Applications

4. [1] An application may be amended at any time prior to the decision by the Registrar whether or not to accept the application.

4. [2] An application may, by leave of the Registrar or a member of the Tribunal, be amended at any time after acceptance and before a determination is made by the Tribunal and such amendment may include:

(a) the contraction of the area of land or waters the subject of the application;

(b) reduction of the scope of native title rights claimed in respect of the land or waters the subject of the application;

(c) substitution or joinder of persons as applicants to the application.

4. [3] Any amendment to an application shall be noted on the Schedule of Applications Received or the Register of Native Title Claims whichever is applicable.

5. Search Procedures

5. [1] Upon receipt of an application the Registrar will ordinarily commission searches of current freehold, pastoral leaseholds and mining tenements to supplement information provided by the applicants and for the purpose of discharging the Registrar's obligation in relation to acceptance and notification of applications.

5. [2] The Registrar will ordinarily commission a land tenure history search to cover past freehold or leasehold interests which may have extinguished native title on currently vacant crown land.

5. [3] The Registrar will wherever possible, enter into arrangements directly with State and Territory Governments in relation to the provision of such searches.

5. [4] The Registrar will have regard to considerations of economy and expedition in determining the scope and nature of searches to be conducted and the agency through which they are to be conducted in any particular case.

5. [5] The Registrar will, where appropriate, communicate with State and Territory Government Agencies, prior to acceptance of any application with a view to resolving, in consultation with the applicants, uncertainties or ambiguities in relation to the boundaries of the land or waters which are the subject of the claim.

5. [6] Where the Registrar is satisfied that an applicant has provided comprehensive current interests and/or land tenure history searches the Registrar may, in order to expedite processing of the application by the Tribunal, not require searches to be undertaken.

5. [7] The Registrar may, in an appropriate case, provide assistance to an applicant in the definition of the area covered by an application by authorising searches to be carried out on behalf of the Tribunal for that purpose.

6. The Acceptance Process

6. [1] When an application has been received by the Registrar a case officer employed by the Tribunal will be assigned by the Registrar to prepare a short submission on whether the application should be accepted. In preparing the submission the case officer will make such enquiries of the applicant or otherwise as are directed by the Registrar. These may include title and land tenure searches.

6. [2] The Registrar will either accept the application or refer it to a Presidential Member no later than three months following receipt of the application. In the case of a claimant application given under s.67(2) all reasonable steps will be taken to decide the question of acceptance within one month of receipt.

6. [3] An applicant is not required to establish a prima facie case in order to have an application accepted.

6. [4] The acceptance phase of the application is to be treated as a screening process so that the time and resources of the Tribunal are not taken up with hopeless applications or applications which have not met the requirements of s. [62] of the Act. Applicants should support their applications by specific reference to material relied upon to make out the elements of Native Title including historical and anthropological evidence.

6. [5] Guidelines may be issued by the Tribunal from time to time in relation to particular classes of application and the approach of the Registrar to their acceptance. The following appendices are published with these procedures: Guidelines for Acceptance of Applications over Freehold and Leasehold Land (Appendix A).

6. [6] Every application will be subject to examination before acceptance in relation to the basis upon which Native Title is claimed and the existence of extinguishing events.

6. [7] If the Registrar does not accept an application but refers it to a Presidential Member, then the Presidential Member will decide within 21 days whether to direct the Registrar to accept the application. If acceptance is not directed, the Presidential Member will write to the applicant inviting its submissions on whether the application should be accepted. [sentences deleted] The applicant will be asked to respond within a time which is reasonable having regard to the nature of the case. Extensions of time may be allowed if requested. The Presidential Member will direct the Registrar to accept or not accept the application usually within 21 days of the applicant's reply. The Presidential Member may also direct a member of the Tribunal staff to obtain such further information as is thought appropriate -- provided that the applicant is informed of any such further information and given the opportunity to respond to it.

6. [8] The Tribunal will only consider submissions on the acceptance question from the applicants, and will not consider submissions on the acceptance question from parties other than the applicants, either before or after the referral of an application to a Presidential Member.

7. Dissemination of Information with Respect to Applications Received

7.1 Upon receipt of a claimant application for a Native Title determination and its inclusion in the Register of Native Title Claims, the information contained in the Register shall be sent to:

(a) the Commonwealth Attorney-General's Department;

(b) the Secretary of the Parliamentary Joint Committee on Native Title established under s. [204] of the Native Title Act 1993;

(c) the Head Office and State Manager of the Aboriginal and Torres Strait Islander Commission in the relevant State
or Territory;

(d) any Aboriginal representative body in the area affected by the application;

(e) the relevant State or Territory government;

(f) any local government authority within the area of the land or waters covered by the claim;

(g) the National Farmers' Federation;

(h) farmer or pastoralist organisations within the State or Territory affected by the application;

(i) the Chamber of Mines in each of the States and Territories;

(j) the Australian Mining Industry Council;

(k) the Australian Petroleum and Exploration Industry Association;

(l) where forested areas may be affected, the National Association of Forest Industries, the Forest Protection Society
and the relevant State timber industry association;

(m) where an area of waters is affected by the claim, the National Fishing Industry Council, and the relevant State
fishing industry body (if any);

(n) where a national park is affected by the claim the National Parks Association;

(o) the national association of apiarists and the relevant state association of apiarists;

(p) where any other specific industry is or is likely to be affected, the relevant industry association.

7.2 Upon receipt of a non-claimant application for a Native Title determination or for compensation and its inclusion in the Schedule of Non-Registrable Applications Received, the information contained in the Schedule shall be sent to the same parties as are referred to in para 7.1.

8. Notification

8. [1] [Formerly para 8.6] Upon acceptance of an application the Registrar is to consider and determine how to give notice of the application to all persons whose interests may be affected by a determination in relation to it (s.66(1)(a)). In making such a decision the Registrar must have regard to:

(a) the nature of the application;

(b) the likely number of persons whose interests may be affected by a determination;

(c) the nature and range of interests affected;

(d) the time and expense involved in searching records of proprietary interests;

(e) the time and expense involved in various means of notification;

(f) the means available for bringing the application to the notice of persons who may be affected by a determination
including print and media advertising, Aboriginal and Torres Strait Islander representative bodies and other
Aboriginal community groups, industry associations, Commonwealth, State and Territory Governments and Local
Authorities.

8.2. [1] [Formerly para 8.7] The Registrar will take such steps to give notice of the application as are reasonably likely to bring it to the attention of all persons whose interests may be affected by a determination in relation to the application.

8.2. [2] The Registrar will consider whether there are Aboriginal and Torres Strait Islander people whose interests may be affected by the application and what steps may be necessary to give them notice of the application in a way that is readily understood and which provides them with a reasonable opportunity to become parties.

8.2. [3] Where a non-claimant application has been accepted, the Registrar will take such steps as may be necessary to ensure that Aboriginal or Torres Strait Islander people whose interests may be affected by the application are advised promptly of their rights and of the power of the Registrar to give assistance in the preparation of applications and accompanying material.

8. [3] [Formerly para 8.8] Upon acceptance of an application, in addition to the usual notification processes, notice of the acceptance and of any variation between the application as received and as accepted will be given to each of the bodies referred to in para.7.1.

8. [4] [Formerly para 8.9] Copies of maps lodged with the application will be made available to the relevant local authorities within the area affected by the claim for the purposes of public inspection.

8. [5] [Formerly para 8.10] Following acceptance of a claim, the Tribunal will, in appropriate cases, arrange for Members or members of the staff of the Tribunal to attend at Regional centres for the purpose of explaining the nature and scope of the claim and the Tribunal's process to interested members of the public. This process may be done by way of community meetings and/or the setting up of information booths at shopping centres or other places where members of the public are likely to be present.

9. Parties

9. [1] When a person notifies the Registrar that the person wants to be a party in relation to the application, that person will ordinarily be treated as a party for the purposes of the Act unless the Registrar refers to a Presidential Member of the Tribunal the question whether the interests of that person may be affected by a determination. (ss. [68] and 69)

9. [2] A person or body notifying the Registrar that it wishes to be a party to an application shall specify the interest it has which may be affected by a determination. Where there are a large number of parties the Registrar will take steps to discover whether parties with a common interest may be represented by a representative body or association.

9. [3] When the question whether a person's interest may be affected by a determination is referred to a Presidential Member, the Presidential Member may within seven days invite a submission from the person which may be oral or in writing as to the way in which it is said the interests of the person may be affected by a determination on the application. In the ordinary course the Presidential Member will determine whether the interests of the person may be affected within 14 days of receipt of any such submission or from the expiry of the time limited for supplying it as the case may be.

9. [4] In the case of non-claimant applications which are taken to be unopposed by virtue of s.67(4) of the Act, persons who have satisfied a Presidential Member of the Tribunal that they may have a claim to native title in the area affected by the application will be entitled to be parties to the application notwithstanding that they have not lodged nor had accepted a claimant application.

10. Inquiries in Relation to Applications which are Unopposed for the Purposes of Section 70 or Applications the Subject of Agreement without Mediation pursuant to Section 71

10. [1] In the case in which an application is unopposed within the meaning of s.70(2), or agreement is notified pursuant to s.71, at the end of the period specified in the notice issued under s.66, the Tribunal will establish an inquiry for the purpose of determining whether:

(a) the application is unopposed as defined in s.70(2); or

(b) the parties have reached an agreement in the terms given to the Tribunal pursuant to s.71; and

(c) in the case of an unopposed application, the applicant has made out a prima facie case and the determination is
just and equitable in all the circumstances; (s.70(1)(a) and (b)) or

(d) in the case of an agreement pursuant to s.71, that a determination in or consistent with the terms of the
agreement would be within the powers of the Tribunal and would be appropriate in the circumstances; (s.71(c)) and

(e) any other matters relevant to the proposed determination.

10. [2] The inquiry to be conducted by the Tribunal for the purposes of para.10. [1] of these procedures may, if the Tribunal considers it appropriate, be done having regard to the materials lodged with the Tribunal in relation to the application and such other evidence or information as the Tribunal considers appropriate.

10. [3] As a general rule, the inquiry in relation to an application which is unopposed within the meaning of s.70, or an application in respect of which agreement has been reached pursuant to s. [71] without Tribunal mediation, shall not be by way of an exhaustive investigation of the existence of Native Title or other issues arising in the application. Its purpose will be broadly to ensure that the conditions laid down by the Act for the making of the proposed determination are satisfied, that there is a basis for the proposed determination and that it is fair and reasonable in the circumstances. It may also inquire into the question whether in the case of a Native Title determination the Native Title is to be held on trust pursuant to s. [56] and if so, by whom, and alternatively, under s.57, which prescribed body corporate is to perform the functions of a registered Native Title body corporate under the Act and Regulations.

10. [4] If after holding an inquiry the Tribunal finds that the statutory conditions for making a determination are satisfied it shall make determinations which may comprise:

(a) a determination in the terms required by s. [225] that Native Title exists;

(b) a determination that Native Title does not exist;

(c) a determination whether Native Title is to be held in trust and if so, by whom;

(d) a determination that a prescribed body corporate is to carry out functions required by the Act and regulations;

(e) a determination that compensation is payable.

10. [5] If after inquiry the Tribunal is not satisfied that the statutory conditions for making a determination on an unopposed application or pursuant to an agreement without Tribunal mediation have been met, then the Tribunal may:

(a) in the case of an unopposed application to which there are no parties other than the applicant, make a determination that
it is not satisfied that the conditions under s.70(1) have been met. In that event, the application may be dismissed
under s. [148] if there is no prima facie case, or otherwise lodged in the Federal Court for decision; (ss. 160, 166(2) and 74)

(b) in the case of an unopposed application to which there are parties or an application in which the parties have
reached agreement without Tribunal mediation, adjourn the inquiry to enable the President to direct the holding
of a conference under s. [72] of the Act with a view to reaching an agreement in respect of which the Tribunal can
make a determination;

(c) if it has found that there is no prima facie case, dismiss the application (s.148);

(d) make such other determination or take such other course of action as the Tribunal considers appropriate and within
its powers.

10. [6] The following procedures apply to unopposed non-claimant applications:

10.6. [1] As soon as is practicable after the application is to be taken as unopposed, the President will fix a date for an inquiry in relation to the application.

10.6. [2] The Registrar will provide all parties to the application with a list of documents in the possession of the Tribunal relating to the existence or non-existence of native title in the area including documents evidencing current and historical land tenures and will provide copies of those documents on request subject to payment of administrative charges.

10.6. [3] The parties will be invited to make written submissions to the Tribunal on the material which has been circulated.

10.6. [4] The Tribunal will circulate to the parties copies of any submissions so received.

10.6. [5] The documents circulated to the parties including submissions received from any parties will be placed before the Tribunal as evidence or submissions in the inquiry.

10.6. [7] The Tribunal may take evidence or submissions at the inquiry from the parties or from other persons, who, in the opinion of the Tribunal, can assist it in arriving at a determination.

11. Conferences and Inquiries in Relation to Opposed Applications

11. [1] In a case in which it appears, at any time after acceptance of an application, unlikely that the application will be unopposed or that agreement will be reached at the end of the s. [66] notice period the Tribunal, before the expiry of the period in which persons may become parties, may direct the holding of informal preliminary meetings with the applicants and any parties or prospective parties. The preliminary meetings may be used to discuss the collection of materials relating to the application for the purpose of a mediation conference under s. [72] of the Act and the procedures to be followed at such mediation conference.

11. [2] The procedure to be followed for a mediation conference may vary from case to case according to the nature of the application, the views of the parties and the circumstances of the case, Tribunal staff may speak with parties before the conference to explain the conference process and the related inquiry process and possible outcomes.

11. [3] The Tribunal, in the mediation conference, will generally endeavour to apply interests-based negotiation which involves:

(1) parties identifying their own and the other parties' interests relevant to the application;

(2) parties thinking about a variety of options for resolution of the application before deciding what to do;

(3) the parties considering the options against some acceptable standard of fairness or reasonableness.

The objective of the process is to induce each party to focus on the dispute as a common problem to be solved rather than to focus on the other parties and their respective positions. Parties to the application should bear in mind the possibility that some partial agreement may be achievable or some agreement which goes beyond the strict terms of a statutory determination.

The Tribunal accepts that the concepts associated with interests-based negotiation may not necessarily transplant into the cultural context of some parties. It will be open to apply different or modified approaches to take account of such circumstances.

11. [4] The mediation conference must, so far as practicable, involve persons who have authority to make decisions about any proposed agreement. The Tribunal accepts that the conference process may have to allow time for traditional methods of decision-making by Aboriginal people in relation to any proposed agreement and may involve more than one meeting for that purpose.

11. [5] The mediation conference process may involve more than one meeting at different times and places. Meetings may be between the mediator and all the parties together. Meetings may also be between the mediator and one or more parties separately or privately, and such meetings may be before or after any full conference sessions.

11. [6] The mediation conference will usually include a general discussion between the mediator and the parties together about the procedures which should be followed.

11. [7] Such discussion may include the extent to which the proceedings should be treated as confidential. It is recognised that in a mediation affecting a large group or community, or in which there is significant public interests, it may not be possible or desirable to maintain the degree of confidentiality usual in private or commercial mediation. However some restraint is often desirable in order to build trust and encourage free discussion between the parties.

11. [8] Generally it is not helpful to the mediation process for parties to be concurrently debating the issues between them in the public media and it is desirable that while the mediation is in progress they should refrain from making statements to the media except in circumstances agreed with the mediator and other parties.

11. [9] It is desirable that parties should feel free to explore and discuss issues and propose or respond to suggested settlements without fear that what they say may be used against them. Except where otherwise indicated or where an agreement is made proposals and statements made in the course of the mediation are to be taken as made without prejudice. The Native Title Act 1993 provides that, unless the parties otherwise agree, in proceedings before the Federal Court and in subsequent hearings in the Tribunal, evidence may not be given, and statements may not be made, concerning any words
spoken or acts done at a mediation conference (s.72(3)).

11. [10] Each party may, if it wishes, have confidential discussions with the mediator in the absence of other parties so that interests or concerns which it wishes to have identified but does not wish disclosed at that point, or at all, can be discussed. Where appropriate, this may involve meetings between the mediator and the Aboriginal claimants, or other parties, at a place or places within the area the subject of the claim. As noted in 11.5, such meetings may be before or after any full conference sessions.

11. [11] The conference will usually include at an early stage a session in which parties explain their respective interests to each other -- i.e. what they each hope to achieve by any agreed resolution of the application. While it is recognised that in some circumstances or on some points parties may need to speak through lawyers or other representatives, their personal participation in discussion is encouraged to the greatest extent possible. With the help of advisers if required, they may put forward their various options as suggestions to be explored rather than as positions to be adopted. They may also indicate ways of judging the fairness or legitimacy of the various options.

11. [12] During a mediation session, parties may break off to confer among themselves or with advisers or privately with the mediator. Advisers should be open to the possibility that parties may seek, or may agree, to engage in face-to-face discussion without anybody else present or with only the mediator present. Such discussion will be without prejudice.

11. [13] The Presiding Member, as mediator, may if it seems helpful, prepare a draft proposal for criticism and decision but whether this is done will depend upon the progress of the conference.

11. [14] If the Presiding Member determines that it is not reasonably likely that any agreement will result from the conference process, he or she will conclude the conference and inform the Registrar accordingly and the Registrar will, as soon as practicable, lodge the application in the Federal Court for decision.

12. Inquiry after Mediation Conference

12. [1] If at the end of the conference the parties advise the Tribunal that they have reached agreement as to the terms of a determination of the Tribunal in relation to the application, then the President will direct the holding of an inquiry into the application.

12. [2] If, after inquiry, the Tribunal finds that the statutory conditions for making a determination in or consistent with the terms of the agreement are met then it shall make a determination accordingly.

12. [3] If, after inquiry, the Tribunal is not satisfied that the statutory conditions for making a determination pursuant to s. [73] have been met then the Tribunal may:

(a) make a determination that the conditions have not been met;

(b) dismiss the application if it is found that the application is frivolous or vexatious, or that the applicant is unable
to make out a prima facie case, or if the applicant so requests and it is appropriate to do so;

(c) if it has found that Native Title does not exist, make a determination accordingly;

(d) otherwise make such determination as is within its powers and as it thinks appropriate.

12. [4] In the event that the Tribunal declines, after inquiry, to make a determination in or consistent with the terms of the agreement and does not otherwise dismiss the application then the determination which it does make, together with the application, will be lodged in the Federal Court for decision. (ss.160, 166(2) and s.74)

13. Date of Operation of Procedures

These revised procedures come into operation from 8 September 1995.

1. The Registrar of the Tribunal is obliged by s. [63] of the Act to accept an application for a determination that native title exists if the formal requirements of s. [62] of the Act are satisfied unless the Registrar is of the opinion that the application is frivolous or vexatious or that prima facie the claim cannot be made out.

2. An application for a determination that native title exists over land which includes land that is or has been subject to freehold title will not be accepted by the Registrar. This does not extend to freehold land which is held by or in trust for Aboriginal and Torres Strait Islander people and where native title has not been extinguished, for example by a prior freehold or leasehold grant.

3. The following guidelines apply to past and present leasehold interests other than mining leases. Applications over mining leases will be dealt with on a case by case basis until separate guidelines are published.

4. An application for a determination that native title exists over land which includes land which is or has been subject to a lease held from the Crown will not ordinarily be accepted by the Registrar if:

(a) the lease confers or conferred exclusive possession on the lessee for the term of the lease; or

(b) the rights and interests comprising the native title which is claimed are wider than any reservation in favour of
Aboriginal or Torres Strait Islander people contained in the lease.

5. An application for determination of native title over land which includes land which is or has been subject to a lease held from the Crown may be accepted by the Registrar if the applicant can show that it has an arguable case for the proposition that:

(a) the leasehold interest is invalid to the extent that it purports to be inconsistent with a native title claim; and

(b) the leasehold interest has not been validated by s. [14] of the Native Title Act 1993 and native title extinguished
pursuant to s. [15] of that Act; and

(c) the leasehold interest has not been validated and native title extinguished by equivalent provisions of a State or Territory law.

6. An application may be accepted by the Registrar over land which is or has been the subject of a lease from the Crown where the native title rights and interests claimed are not wider than the rights or privileges which may be exercised by Aboriginal or Torres Strait Islander people or others by virtue of a reservation in the lease whether created by statute or otherwise.

7. Each case will be considered on its own merits. In any case where the Registrar does not accept an application the application will be referred to a Presidential Member and if the Presidential Member is of the same opinion as the Registrar, the applicant will be invited to make submissions to the Presidential Member as provided for in s.63.

8. As provided for in para. 5. [2] of these Procedures for Applications for Native Title Determinations and for Compensation the Registrar will ordinarily commission a land tenure history search to cover past freehold or leasehold interests which may have extinguished native title on currently vacant crown land. The Registrar will have regard to considerations of economy and expedition in determining the scope and nature of the searches to be conducted. These guidelines do not involve a general commitment to exhaustive land tenure history searches.

9. These guidelines indicate the approach taken by the Registrar at the point of acceptance. The acceptance of an application does not mean that the Registrar or the Tribunal has formed the view that native title exists.