Native Title (Federal Court) Regulations 2024

The regulations directly affect any person or group wishing to commence proceedings in the Federal Court for the determination of native title, for the revocation or variation of an approved determination, or for compensation in relation to native title. That includes native title claim groups (who must appoint an applicant or applicants authorised to make the application), registered native title bodies corporate (who may apply for revocation or variation or for compensation), and any person with a legal or equitable interest in land who makes a non-claimant application. The forms require the applicant to specify their capacity, for example as a person authorised by the native title claim group or as a registered native title body corporate. The regulations also affect representative Aboriginal and Torres Strait Islander bodies, which may be required to certify a claimant application (Form 1 Schedule P) and whose details must be listed in the application (Form 1 Schedule I, Form 3 Schedule D, Form 4 Schedule F). The Native Title Registrar is affected insofar as the prescribed forms set out the information and documents that are relevant to a claim for registration on the Register of Native Title Claims under section 190A of the Act. The Federal Court itself is affected as the forms are filed with the Court and serve as the initiating process. Any person who wishes to become a party to an existing application must use Form 5 to give notice under paragraph 84(3)(b) of the Act; this includes individuals, corporations, and government bodies claiming an interest in the area. Legal practitioners and advisers must ensure that applications are prepared in accordance with the prescribed forms, including the required schedules and affidavits. During the transitional period, applicants may also rely on the old 1998 forms, so both new and old requirements affect those who choose one path or the other.

The regulations impose several duties on applicants. An applicant must use the correct prescribed form for the type of application they intend to make: Form 1 for a claimant application, Form 2 for a non-claimant application, Form 3 for a revised native title determination application, and Form 4 for a compensation application. The form must be completed with all required schedules, and the prescribed documents must accompany the application. For claimant applications, the applicant must swear an affidavit stating the matters set out in subsection 62(1A) of the Act, including that the applicant believes native title rights have not been extinguished, that no approved determination covers the area, that the applicant is authorised by all persons in the native title claim group, and details of the decision-making process and any conditions under section 251BA of the Act. For compensation applications, similar affidavit requirements apply under paragraphs 62(3)(a) and 62(5)(a). The applicant also has a duty to provide an address for service and, optionally, may consent to receiving all notices under the Act by email (see Part C of Forms 1 and 4). If the application is a non-claimant application, the applicant must provide details of their interest in the area and any documentary evidence (Form 2 Schedule D). For revised applications, the applicant must include a copy of the approved determination and details of events or grounds for variation or revocation (Form 3 Schedules E, F, G). Rights conferred by the regulations include the right to give notice of intention to become a party using Form 5, which must state whether the person claims native title rights and interests and how they will be affected, and the right to attach documentary evidence. The applicant has the right to provide any additional relevant information (Schedule R in Form 1, Schedule E in Form 2, Schedule I in Form 3, Schedule P in Form 4). The regulations also preserve the right to use the old forms during the six-month transitional period (regulation 9), which is a right of election.

The Native Title (Federal Court) Regulations 2024 does not itself create any criminal penalties or civil pecuniary penalties. Enforcement consequences arise indirectly through the operation of the Native Title Act 1993 and the Federal Court’s procedures. If an application does not comply with the prescribed form and does not include the required information and documents, the Registrar may refuse to accept it for filing, or the Court may reject it. For claimant applications, the Native Title Registrar’s consideration of the claim for registration under section 190A of the Act depends on the application including the materials specified in the form, such as Schedules L, M, N, O, and P. Failure to include these may result in the claim not being registered, which in turn affects the procedural rights (such as the right to be notified of future acts) that registration confers. The affidavit requirements are mandatory: an application that is not accompanied by an affidavit containing the statements required by section 62 of the Act will be invalid. Similarly, for compensation applications, the affidavit must contain the statements listed in the notes to Form 4. The notice of intention to become a party under Form 5 does not have a prescribed sanction for non-compliance, but a notice that does not contain the required information (such as the nature of the interest and how it may be affected) may be disregarded by the Court. The transitional provisions do not impose penalties for using the old forms within the six-month window, but after the transitional period ends, use of the old forms would be non-compliant. No fines or imprisonment are provided for in this instrument.

This instrument operates solely within the framework of the Native Title Act 1993. It is made under that Act and prescribes forms for the purposes of paragraphs 61(5)(a), 61(5)(c), and 61(5)(d) of the Act. The forms themselves cross-reference numerous sections of the Act, including section 13 (applications for determination and variation), section 24MD(6B)(c) (notifications in relation to future acts), section 29 (notices of future acts), section 47 (pastoral leases), section 47A (Aboriginal lands), section 47B (vacant Crown land), section 47C (national parks), section 61 (who may apply), section 62 (content of applications), section 64 (amended applications), section 79 (non-monetary compensation), section 84 (parties), section 190A (registration), section 190B (conditions for registration), section 190C (certification and authorisation), and section 251B, 251BA (authorisation and conditions). The instrument also interacts with the Federal Court’s own rules and practice directions, although those are not specified in the text. The transitional regulation 9 specifically provides that the old Native Title (Federal Court) Regulations 1998 continue to apply during the six-month period despite their repeal, so there is an overlap period where two sets of forms are permissible. This can affect the interaction with other instruments such as the Native Title (Prescribed Bodies Corporate) Regulations 1999 or the Native Title (Indigenous Land Use Agreements) Regulations 1999, though the present instrument is limited to Federal Court applications. The forms also require the applicant to have regard to laws of States and Territories corresponding to section 29 of the Act for the purpose of notification searches.

The Native Title (Federal Court) Regulations 2024 is a new instrument that was made by the Governor-General on 12 September 2024 and commenced on 1 October 2024. It repeals the Native Title (Federal Court) Regulations 1998 in their entirety (see Schedule 2, item 1). There have been no amendments to this instrument as of the date of the text provided. The instrument was made by the Honourable Sam Mostyn AC, Governor-General, acting with the advice of the Federal Executive Council, and by command of the Attorney-General, Mark Dreyfus KC. The instrument contains a commencement table stating that the whole of the instrument commences on 1 October 2024. The transitional provisions allow for a six-month period during which the old regulations continue to apply in relation to applications made under Division 1 of Part 3 of the Act. Future amendments to this instrument may be made by subsequent regulations.

The source text does not record any litigation history directly relating to the Native Title (Federal Court) Regulations 2024. This is consistent with the instrument having only recently been made and commenced. The corresponding previous instrument, the Native Title (Federal Court) Regulations 1998, may have been the subject of judicial consideration over its 26-year lifespan, but no such cases are mentioned in the text before you. It is possible that courts have considered the adequacy of applications made under the 1998 forms, but the present regulations do not incorporate or reference any case law. Practitioners should note that the transitional period means that applications brought under the old 1998 forms may be subject to the same legal analysis that applied before the repeal. Any litigation concerning the new forms will likely arise after the instrument has been in use for some time.

Several practical traps arise from the detailed requirements of the regulations. First, the six-month transitional period (regulation 9) creates a risk that applicants or their advisers might inadvertently mix elements of the old and new forms. The regulation permits using either the old or the new forms in full, not a combination of both. Second, Form 1 contains a note that certain schedules (L through Q) are not required for filing but are relevant to the Registrar’s consideration for registration under section 190A of the Act. Omitting them will not invalidate the application but may prevent registration, which carries significant procedural consequences. Third, the affidavit required for a claimant application must include the specific statements set out in subsection 62(1A) of the Act, including details of any conditions under section 251BA of the Act. Practitioners must ensure the affidavit covers all seven paragraphs (a) through (g) as listed in the note to Form 1. Fourth, for compensation applications, if no approved determination of native title exists for the area, the Federal Court must also make a current determination of native title at the same time (see Form 4 Note 1). This dual proceeding requirement can be overlooked. Fifth, Form 4 Note 2 explicitly states that the Native Title Registrar is only required to consider a claimant application (Form 1) for registration, not a compensation application. A compensation applicant who also needs procedural rights under the future act regime must ensure they have a properly filed and registered claimant application. Sixth, Form 1 Schedule GA requires details of any notifications under paragraph 24MD(6B)(c) of the Act, which is a relatively obscure provision about compulsory acquisition of native title by the Commonwealth. Practitioners may not routinely search for these notifications. Seventh, the requirement to provide an email address for service is optional in Forms 1 and 4, but if an applicant provides one they consent to receiving all notices under the Act by email, including future act notices. Withdrawing consent later may not be possible. Eighth, the notice of intention to become a party (Form 5) requires a statement of how the person’s native title rights will be affected or, if not claiming native title, a description of the nature of the interest and how it may be affected. Documentary evidence should be supplied. Failure to articulate the interest with sufficient particularity may result in the notice being rejected by the Court.

To comply with the Native Title (Federal Court) Regulations 2024, an applicant must first identify the correct type of application and select the corresponding form from Schedule 1. For a claimant native title determination, use Form 1; for a non-claimant determination, use Form 2; for a revised determination (revocation or variation), use Form 3; for a compensation application, use Form 4. During the transitional period (1 October 2024 to 31 March 2025), the applicant may alternatively use the forms from the repealed 1998 regulations, but must do so consistently. The applicant must ensure that all schedules listed in the form are completed, even if some are noted as not mandatory for filing (since they may be essential for registration). The required affidavit must be sworn by the applicant and contain every statement prescribed by the relevant provision of the Native Title Act, as cross-referenced in the notes to the forms. For claimant applications, the affidavit must address authorisation, conditions under section 251BA of the Act, and the belief that native title has not been extinguished and that no approved determination covers the area. The application must be accompanied by all prescribed documents, including maps, search results, copies of title documents, and, where applicable, copies of agreements under section 47C of the Act. If the application is a claimant application and has been certified by a representative Aboriginal or Torres Strait Islander body, a copy of the certificate should be attached to Schedule P; otherwise the applicant must include a statement as to authorisation and grounds for the Registrar to accept it. The applicant must provide an address for service and may choose to provide an email address for receiving notices under the Act. When filing, the applicant must sign the form or have their solicitor sign it. Any person who wishes to become a party to an existing application must complete Form 5, stating whether they claim native title rights and interests, identifying the part of the area if applicable, describing how the determination will affect their interests, and attaching documentary evidence such as a copy of a lease or licence. The notice must be given under paragraph 84(3)(b) of the Act to the relevant District Registrar of the Federal Court. Legal practitioners should maintain a checklist of all schedules and affidavits to avoid omissions that could delay proceedings or prevent registration.