Document ID: chunk:federal_register_of_legislation:C2007C00533:clause:1_39
Version: federal_register_of_legislation:C2007C00533
Segment Type: clause
Provision Reference: sch 1 cl 39
Character Range: 189454–192110

39  Criteria for making arbitral body determinations

 (1) In making its determination, the arbitral body must take into account the following:
 (a) the effect of the act on:
 (i) the enjoyment by the native title parties of their registered native title rights and interests; and
 (ii) the way of life, culture and traditions of any of those parties; and
 (iii) the development of the social, cultural and economic structures of any of those parties; and
 (iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
 (v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
 (b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
 (c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
 (e) any public interest in the doing of the act;
 (f) any other matter that the arbitral body considers relevant.

Existing non-native title interests etc.

 (2) In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
 (a) existing non-native title rights and interests in relation to the land or waters concerned; and
 (b) existing use of the land or waters concerned by persons other than the native title parties.

Laws protecting sites of significance etc. not affected

 (3) Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.

Agreements to be given effect

 (4) Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
 (a) must take that agreement into account; and
 (b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.