Document ID: chunk:federal_register_of_legislation:C2007C00533:clause:2_190d
Version: federal_register_of_legislation:C2007C00533
Segment Type: clause
Provision Reference: sch 2 cl 190D
Character Range: 358010–360415

190D  If the claim cannot be registered

 (1) If the Registrar does not accept the claim for registration, the Registrar must, as soon as practicable, give the applicant and the Federal Court written notice of his or her decision not to accept the claim, including a statement of the reasons for the decision.

Content of notice where failure to satisfy physical connection test

 (1A) If the only reason why the Registrar cannot accept the claim for registration is that the condition in subsection 190B(7) (which is about a physical connection with the claim area) is not satisfied, the notice must advise the applicant of the applicant's right to make an application to the Federal Court under subsection (2) and of the power of the Court to make an order in accordance with subsection (4) in respect of the application.

Applicant may apply to Federal Court for review

 (2) If the Registrar gives the applicant a notice under subsection (1), the applicant may apply to the Federal Court for a review of the Registrar's decision not to accept the claim.

Federal Court has jurisdiction

 (3) The Court has jurisdiction to hear and determine an application made to it under subsection (2).

Court order where physical connection test failed

 (4) If, on an application under subsection (2) in a case to which subsection (1A) applies, the Court is satisfied that:
 (a) prima facie, at least some of the native title rights and interests claimed in the application can be established; and
 (b) at some time in his or her lifetime, at least one parent of one member of the native title claim group had a traditional physical connection with any part of the land or waters and would reasonably have been expected to have maintained that connection but for things done (other than the creation of an interest in relation to land or waters) by:
 (i) the Crown in any capacity; or
 (ii) a statutory authority of the Crown in any capacity; or
 (iii) any holder of a lease over any of the land or waters, or any person acting on behalf of such a holder of a lease;
the Court may order the Registrar to accept the claim for registration.

Opportunity to be heard

 (5) Before making an order under subsection (4), the Court must give to any person who is a party to the proceedings in the Court under Part 4 in relation to the application an opportunity to be heard in relation to the making of the order.