190BRegistration: conditions about merits of the claim

190B  Registration: conditions about merits of the claim

 (1) This section contains the conditions mentioned in subparagraph 190A(6)(b)(i).

Identification of area subject to native title

 (2) The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.

Identification of native title claim groups

 (3) The Registrar must be satisfied that:

 (a) the persons in the native title claim group are named in the application; or

 (b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.

Identification of claimed native title

 (4) The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.

Factual basis for claimed native title

 (5) The Registrar must be satisfied that the factual basis on which it is asserted that the native title rights and interests claimed exist is sufficient to support the assertion. In particular, the factual basis must support the following assertions:

 (a) that the native title claim group have, and the predecessors of those persons had, an association with the area; and

 (b) that there exist traditional laws acknowledged by, and traditional customs observed by, the native title claim group that give rise to the claim to native title rights and interests; and

 (c) that the native title claim group have continued to hold the native title in accordance with those traditional laws and customs.

Prima facie case

 (6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.

Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a “right to negotiate” process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a “right to negotiate” process).

Physical connection

 (7) The Registrar must be satisfied that at least one member of the native title claim group: