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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97-98
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Native Title
Amendment Bill 1997
No. ,
1998
(Prime Minister)
A
Bill for an Act to amend the Native Title Act 1993, and for related
purposes
Contents
Native Title Act
1993 0644517921.html
Part 1—Native Title Act
1993 0644517921.html
Part 2—Federal Court of Australia Act
1976 0644517921.html
Part 3—Human Rights and Equal Opportunity Commission Act
1986 0644517921.html
Part 1—Initial
amendments 0644517921.html
Part 2—Later
amendments 0644517921.html
Native Title Act
1993 0644517921.html
Part 1—Contents of this
Schedule 0644517921.html
Part 2—Application of future act
amendments 0644517921.html
Part 3—Application of amendments relating to section 61 applications:
proceedings relating to
determinations 0644517921.html
Part 4—Application of amendments relating to section 61 applications:
registration of claims 0644517921.html
Part 5—Various application and transitional
provisions 0644517921.html
Part 6—Validation of certain
acts 0644517921.html
Part 6A—Compensation
etc. 0644517921.html
Part 7—Regulations 0644517921.html
Part 8—Interpretation 0644517921.html
A Bill for an Act to amend the Native Title Act
1993, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Native Title Amendment Act
1997.
(1) Sections 1, 2 and 3 commence on the day on which this Act receives the
Royal Assent.
(2) Subject to subsection (3), Part 1 of Schedule 3 commences on a day to
be fixed by Proclamation.
(3) If Part 1 of Schedule 3 does not commence within the period of 9
months beginning on the day on which this Act receives the Royal Assent, that
Part commences on the first day after the end of that period.
(4) Part 2 of Schedule 3 commences:
(a) on the first day after the end of the period of 12 months after the
commencement of Part 1 of Schedule 3; or
(b) if, before the end of that period, a later day is fixed by
Proclamation—on that later day.
(5) Subject to subsection (6), the remaining provisions of this Act
commence on a day or days to be fixed by Proclamation.
(6) If a provision referred to in subsection (5) does not commence within
the period of 9 months beginning on the day on which this Act receives the Royal
Assent, that provision commences on the first day after the end of that
period.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
1 Paragraph 3(d)
After “past acts”, insert “, and intermediate period
acts,”.
2 Section 4
Repeal the section, substitute:
Recognition and protection of native title
(1) This Act recognises and protects native title. It provides that native
title cannot be extinguished contrary to the Act.
Topics covered
(2) Essentially, this Act covers the following topics:
(a) acts affecting native title (see subsections (3) to (6));
(b) determining whether native title exists and compensation for acts
affecting native title (see subsection (7)).
Kinds of acts affecting native title
(3) There are basically 2 kinds of acts affecting native title:
(a) past acts (mainly acts done before this Act’s
commencement on 1 January 1994 that were invalid because of native title);
and
(b) future acts (mainly acts done after this Act’s
commencement that either validly affect native title or are invalid because of
native title).
Consequences of past acts and future acts
(4) For past acts and future acts, this Act deals with the following
matters:
(a) their validity;
(b) their effect on native title;
(c) compensation for the acts.
Intermediate period acts
(5) However, for certain acts (called intermediate period
acts) done mainly before the judgment of the High Court in Wik
Peoples v Queensland (1996) 187 CLR 1, that would be invalid because they
fail to pass any of the future act tests in Division 3 of Part 2, or for any
other reason because of native title, this Act provides for similar consequences
to past acts.
Confirmation of extinguishment of native title
(6) This Act also confirms that many acts done before the High
Court’s judgment, that were either valid, or have been validated under the
past act or intermediate period act provisions, will have extinguished native
title. If the acts are previous exclusive possession acts (see
section 23B), the extinguishment is complete; if the acts are previous
non-exclusive possession acts (see section 23F), the extinguishment is
to the extent of any inconsistency.
Role of Federal Court and National Native Title Tribunal
(7) This Act also:
(a) provides for the Federal Court to make determinations of native title
and compensation; and
(b) establishes a National Native Title Tribunal with power to:
(i) make determinations about whether certain future acts can be done and
whether certain agreements concerning native title are to be covered by the Act;
and
(ii) provide assistance or undertake mediation in other matters relating
to native title; and
(c) deals with other matters such as the keeping of registers and the role
of representative Aboriginal/Torres Strait Islander bodies.
3 Subsection 7(2)
After “past acts”, insert “or intermediate period
acts”.
4 Paragraph 11(2)(a)
Repeal the paragraph, substitute:
(a) in accordance with Division 2B (which deals with confirmation of past
extinguishment of native title) or Division 3 (which deals with future acts etc.
and native title) of Part 2; or
5 Paragraph 11(2)(b)
After “past acts”, insert “, or intermediate period
acts,”.
6 Division 2 of Part 2
(heading)
Repeal the heading, substitute:
7 Before Subdivision A of Division 2 of Part
2
Insert:
(1) In summary, this Division validates, or allows States and Territories
to validate, certain acts that:
(a) took place before 1 January 1994; and
(b) would otherwise be invalid because of native title.
This Division also covers certain acts done after that day consisting of an
extension or renewal etc. of an act done before that day.
(2) The acts validated are called past acts; they are
defined in section 228.
(3) This Division also sets out the effect of such validation on native
title. The effect varies depending on the nature of the act. For this purpose,
different categories of past act are defined by sections 229 to 232.
8 At the end of subsection
15(1)
Add:
Note: This subsection does not apply to the act if section
23C or 23G applies to the act.
9 Division 3 of Part 2
Repeal the Division, substitute:
(1) In summary, this Division validates, or allows States and Territories
to validate, certain acts that:
(a) took place on or after 1 January 1994 but on or before 23 December
1996; and
(b) would otherwise be invalid to any extent because they fail to pass any
of the future act tests in Division 3 of Part 2 or for any other reason because
of native title.
(2) The acts are called intermediate period acts; they are
defined in section 232A.
(3) For this validation to apply, before the act was done, there must have
been:
(a) a grant of a freehold estate or a lease (other than a mining lease);
or
(b) a public work;
over any of the land or waters concerned.
(4) The Division also sets out the effect of such validation on native
title. The effect varies depending on the nature of the act. For this purpose,
different categories of intermediate period act are defined by sections 232B to
232E.
(5) The structure of the Division is very similar to that of Division 2
(which deals with validation of past acts).
If an intermediate period act is an act attributable to the Commonwealth,
the act is valid, and is taken always to have been valid.
If an intermediate period act is an act attributable to the
Commonwealth:
(a) if it is a category A intermediate period act to which subsection
232B(2), (3) or (4) (which deal with things such as the grant or vesting of
freehold estates and certain leases) applies—the act extinguishes all
native title in relation to the land or waters concerned; and
(b) if it is a category A intermediate period act to which subsection
232B(7) (which deals with public works) applies:
(i) the act extinguishes the native title in relation to the land or
waters on which the public work concerned (on completion of its construction or
establishment) was or is situated; and
(ii) the extinguishment is taken to have happened when the construction or
establishment began; and
(c) if it is a category B intermediate period act that is wholly or partly
inconsistent with the continued existence, enjoyment or exercise of the native
title rights and interests concerned—the act extinguishes the native title
to the extent of the inconsistency; and
(d) if it is a category C intermediate period act or a category D
intermediate period act—the non-extinguishment principle applies to the
act.
Note: This section does not apply to the act if section 23C
or 23G applies to the act.
If:
(a) an intermediate period act attributable to the Commonwealth contains a
reservation or condition for the benefit of Aboriginal peoples or Torres Strait
Islanders; or
(b) the doing of an intermediate period act attributable to the
Commonwealth would affect rights or interests (other than native title rights
and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising
under legislation, at common law or in equity and whether or not rights of
usage);
nothing in section 22B affects that reservation or condition or those
rights or interests.
(1) If an intermediate period act is an act attributable to the
Commonwealth, the native title holders are entitled to compensation for the
act.
Who pays compensation
(2) The compensation is payable by the Commonwealth.
Section applies if acquisition of property other than on just
terms
(1) This section applies if the invalidity (disregarding section 22A) of
an intermediate period act attributable to the Commonwealth results from a
paragraph 51(xxxi) acquisition of property by the Commonwealth from any person
having been made otherwise than on paragraph 51(xxxi) just terms.
Entitlement to compensation
(2) The person is entitled to compensation from the Commonwealth for the
acquisition in accordance with Division 5 and, if that compensation does not
ensure that the acquisition is made on paragraph 51(xxxi) just terms, to such
additional compensation from the Commonwealth as is necessary to ensure that it
is.
(1) If:
(a) an act that is attributable to the Commonwealth consists of:
(i) the creation of a right to mine; or
(ii) the variation of such a right to extend the area to which it relates;
or
(iii) the extension of the period for which such a right has effect, other
than under an option or right of extension or renewal created by the lease,
contract or other thing whose grant or making created the right to mine;
and
(b) the act took place at any time during the period from the beginning of
1 January 1994 until the end of 23 December 1996; and
(c) at any time before the act was done, either:
(i) a grant of a freehold estate or a lease was made covering any of the
land or waters affected by the act; or
(ii) a public work was constructed or established on any of the land or
waters affected by the act;
the Commonwealth must, before the end of 6 months after this section
commences:
(d) give notice containing the details set out in subsection (2) to any
registered native title body corporate, any registered native title claimant and
any representative Aboriginal/Torres Strait Islander body, in relation to any of
the land or waters affected by the act; and
(e) notify the public in the determined way of the details set out in
subsection (2).
Details
(2) The details are:
(a) the date on which the act was done; and
(b) the kind of mining involved; and
(c) sufficient information to enable the area affected by the act to be
identified; and
(d) information about the way in which further details about the act may
be obtained.
If a law of a State or Territory contains provisions to the same effect
as sections 22B and 22C, the law of the State or Territory may provide that
intermediate period acts attributable to the State or Territory are valid, and
are taken always to have been valid.
Compensation where validation
(1) If a law of a State or Territory validates an intermediate period act
attributable to the State or Territory in accordance with section 22F, the
native title holders are entitled to compensation.
Recovery of compensation
(2) The native title holders may recover the compensation from the State
or Territory.
States or Territories may create compensation entitlement
(3) This section does not prevent a law of a State or Territory from
creating an entitlement to compensation for an intermediate period act or for
the validation of an intermediate period act.
Note: Paragraph 49(b) deals with the situation where there
are multiple rights to compensation under Commonwealth, State and Territory
laws.
(1) If:
(a) an act that is attributable to a State or Territory consists
of:
(i) the creation of a right to mine; or
(ii) the variation of such a right to extend the area to which it relates;
or
(iii) the extension of the period for which such a right has effect, other
than under an option or right of extension or renewal created by the lease,
contract or other thing whose grant or making created the right to mine;
and
(b) the act took place at any time during the period from the beginning of
1 January 1994 until the end of 23 December 1996; and
(c) at any time before the act was done, either:
(i) a grant of a freehold estate or a lease was made covering any of the
land or waters affected by the act; or
(ii) a public work was constructed or established on any of the land or
waters affected by the act;
the State or Territory must, before the end of 6 months after the
commencement of the law of the State or Territory that validates intermediate
period acts attributable to the State or Territory in accordance with section
22F:
(d) give notice containing the details set out in subsection (2) to any
registered native title body corporate, any registered native title claimant and
any representative Aboriginal/Torres Strait Islander body, in relation to any of
the land or waters affected by the act; and
(e) notify the public in the determined way of the details set out in
subsection (2).
Details
(2) The details are:
(a) the date on which the act was done; and
(b) the kind of mining involved; and
(c) sufficient information to enable the area affected by the act to be
identified; and
(d) information about the way in which further details about the act may
be obtained.
(1) In summary, this Division provides that certain acts attributable to
the Commonwealth that were done on or before 23 December 1996 will have
completely or partially extinguished native title.
(2) If the acts were previous exclusive possession acts
(involving the grant or vesting of things such as freehold estates or leases
that conferred exclusive possession, or the construction or establishment of
public works), the acts will have completely extinguished native
title.
(3) If the acts were previous non-exclusive possession acts
(involving grants of non-exclusive agricultural leases or non-exclusive
pastoral leases), they will have extinguished native title to the extent of any
inconsistency.
(4) This Division also allows States and Territories to legislate, in
respect of certain acts attributable to them, to extinguish native title in the
same way as is done under this Division for Commonwealth acts.
(1) This section defines previous exclusive possession
act.
Grant of freehold estates or certain leases etc. on or before
23.12.1996
(2) An act is a previous exclusive possession act
if:
(a) it is valid (including because of Division 2 or 2A of Part 2);
and
Note: As at the commencement of this section, acts such as
grants before 1 January 1994 that were invalid because of native title have been
validated by or under Division 2.
(b) it took place on or before 23 December 1996; and
(c) it consists of the grant or vesting of any of the following:
(i) a Scheduled interest (see section 249C);
(ii) a freehold estate;
(iii) a commercial lease that is neither an agricultural lease nor a
pastoral lease;
(iv) an exclusive agricultural lease (see section 247A) or an exclusive
pastoral lease (see section 248A);
(v) a residential lease;
(vi) a community purposes lease (see section 249A);
(vii) what is taken by subsection 245(3) (which deals with the dissection
of mining leases into certain other leases) to be a separate lease in respect of
land or waters mentioned in paragraph (a) of that subsection, assuming that the
reference in subsection 245(2) to “1 January 1994” were instead a
reference to “24 December 1996”;
(viii) any lease (other than a mining lease) that confers a right of
exclusive possession over particular land or waters.
Vesting of certain land or waters to be covered by paragraph
(2)(c)
(3) If:
(a) by or under legislation of a State or a Territory, particular land or
waters are vested in any person; and
(b) a right of exclusive possession of the land or waters is expressly or
impliedly conferred on the person by or under the legislation;
the vesting is taken for the purposes of paragraph (2)(c) to be the vesting
of a freehold estate over the land or waters.
Construction of public works commencing on or before
23.12.1996
(7) An act is a previous exclusive possession act
if:
(a) it is valid (including because of Division 2 or 2A); and
(b) it consists of the construction or establishment of any public work
that commenced to be constructed or established on or before 23 December
1996.
Exclusion of acts benefiting Aboriginal peoples etc.
(9) An act is not a previous exclusive possession act if it
is the grant or vesting of any thing that is made or done by or under
legislation that makes provision for the grant or vesting of such things only
to, in or for the benefit of, Aboriginal peoples or Torres Strait
Islanders.
Exclusion by regulation
(10) The regulations may provide that an act is not a previous
exclusive possession act.
Acts other than public works
(1) If an act is a previous exclusive possession act under subsection
23B(2) (including because of subsection 23B(3)) and is attributable to the
Commonwealth:
(a) the act extinguishes any native title in relation to the land or
waters covered by the freehold estate, Scheduled interest or lease concerned;
and
(b) the extinguishment is taken to have happened when the act was
done.
Public works
(2) If an act is a previous exclusive possession act under subsection
23B(7) (which deals with public works) and is attributable to the
Commonwealth:
(a) the act extinguishes native title in relation to the land or waters on
which the public work concerned (on completion of its construction or
establishment) was or is situated; and
(b) the extinguishment is taken to have happened when the construction or
establishment of the public work began.
Other extinguishment provisions do not apply
(3) If this section applies to the act, sections 15 and 22B do not apply
to the act.
If:
(a) a previous exclusive possession act attributable to the Commonwealth
contains a reservation or condition for the benefit of Aboriginal peoples or
Torres Strait Islanders; or
(b) the doing of a previous exclusive possession act attributable to the
Commonwealth would affect rights or interests (other than native title rights
and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising
under legislation, at common law or in equity and whether or not rights of
usage);
nothing in section 23C affects that reservation or condition or those
rights or interests.
If a law of a State or Territory contains a provision to the same effect
as section 23D, the law of the State or Territory may make provision to the same
effect as section 23C in respect of all or any previous exclusive possession
acts attributable to the State or Territory.
(1) This section defines previous non-exclusive possession
act.
Acts on or before 23.12.96
(2) An act is a previous non-exclusive possession act
if:
(a) it is valid (including because of Division 2 or 2A of Part 2);
and
Note: As at the commencement of this section, acts such as
grants before 1 January 1994 that were invalid because of native title have been
validated by or under Division 2.
(b) it takes place on or before 23 December 1996; and
(c) it consists of the grant of a non-exclusive agricultural lease (see
section 247B) or a non-exclusive pastoral lease (see section
248B).
Acts after 23.12.96
(3) An act is also a previous non-exclusive possession act
if:
(a) it takes place after 23 December 1996; and
(b) it would be a previous non-exclusive possession act under subsection
(2) if that subsection were not limited in its application to acts taking place
on or before 23 December 1996; and
(c) it takes place:
(i) in exercise of a legally enforceable right created by any act done on
or before 23 December 1996; or
(ii) in good faith in giving effect to, or otherwise because of, an offer,
commitment, arrangement or undertaking made or given in good faith on or before
23 December 1996, and of which there is written evidence created at or about the
time the offer, commitment, arrangement or undertaking was made.
Exclusion by regulation
(4) The regulations may provide that an act is not a previous
non-exclusive possession act.
(1) Subject to subsection (2), if a previous non-exclusive possession act
(see section 23F) is attributable to the Commonwealth:
(a) the act extinguishes any native title rights and interests in relation
to the land or waters covered by the lease concerned to the extent that the act
involves the grant of rights and interests that are inconsistent with the native
title rights and interests; and
(b) any native title rights and interests in relation to the land or
waters covered by the lease concerned are extinguished to the extent that they
confer possession, occupation, use and enjoyment of the land or waters to the
exclusion of all others; and
(c) the extinguishment is taken to have happened when the act was done;
and
(d) to the extent that the act involves the grant of rights and interests
that are not inconsistent with native title rights and interests in relation to
the land or waters covered by the lease concerned, the rights and interests
granted, and the doing of any activity in giving effect to them, prevail over
the native title rights and interests but do not extinguish them.
Exclusion of certain acts
(2) If the act is the grant of a pastoral lease or an agricultural lease
to which paragraph 15(1)(a) applies, this section does not apply to the
act.
Effect on sections 15 and 22B
(3) If this section applies to the act, sections 15 and 22B do not apply
to the act.
If:
(a) a previous non-exclusive possession act attributable to the
Commonwealth contains a reservation or condition for the benefit of Aboriginal
peoples or Torres Strait Islanders; or
(b) the doing of a previous non-exclusive possession act attributable to
the Commonwealth would affect rights or interests (other than native title
rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether
arising under legislation, at common law or in equity and whether or not rights
of usage);
nothing in section 23G affects that reservation or condition or those
rights or interests.
In the case of a previous non-exclusive possession act to which
subparagraph 23F(3)(c)(ii) applies:
(a) notice must be given, in the way determined in writing by the
Commonwealth Minister, to any representative Aboriginal/Torres Strait Islander
bodies, registered native title bodies corporate and registered native title
claimants in relation to the land or waters that will be affected by the act
about the doing or proposed doing of the act, or acts of that class, in relation
to the land or waters concerned; and
(b) they must be given an opportunity to comment on the act or class of
acts.
If a law of a State or Territory contains provisions to the same effect
as sections 23H and 23HA, the law of the State or Territory may make provision
to the same effect as section 23G in respect of all or any previous
non-exclusive possession acts attributable to the State or Territory.
Entitlement
(1) The native title holders are entitled to compensation in accordance
with Division 5 for any extinguishment under this Division of their native title
rights and interests by an act, but only to the extent (if any) that the native
title rights and interests were not extinguished otherwise than under this
Act.
Commonwealth acts
(2) If the act is attributable to the Commonwealth, the compensation is
payable by the Commonwealth.
State and Territory acts
(3) If the act is attributable to a State or Territory, the compensation
is payable by the State or Territory.
Future acts
(1) This Division deals mainly with future acts, which are defined in
section 233. Acts that do not affect native title are not future
acts; therefore this Division does not deal with them (see section 227
for the meaning of acts that affect native title).
Validity of future acts
(2) Basically, this Division provides that, to the extent that a future
act affects native title, it will be valid if covered by certain provisions of
the Division, and invalid if not.
Validity under indigenous land use agreements
(3) A future act will be valid if the parties to certain agreements
(called indigenous land use agreements—see Subdivisions B, C and D)
consent to the act being done.
Other bases for validity
(4) A future act will also be valid to the extent covered by any of the
following:
(a) section 24FA (future acts where procedures indicate absence of native
title);
(b) section 24GB (acts permitting primary production on non-exclusive
agricultural or pastoral leases);
(c) section 24GD (acts permitting off-farm activities directly connected
to primary production activities);
(d) section 24GE (granting rights to third parties etc. on non-exclusive
agricultural or pastoral leases);
(e) section 24HA (management of water and airspace);
(f) section 24IA (acts involving renewals and extensions etc. of
acts);
(g) section 24JA (acts involving reservations, leases etc.);
(h) section 24KA (acts involving facilities for services to the
public);
(i) section 24LA (low impact future acts);
(j) section 24MD (acts that pass the freehold test—but see
subsection (5));
(k) section 24NA (acts affecting offshore places).
Right to negotiate
(5) In the case of certain acts covered by section 24MD (acts that pass
the freehold test), for the acts to be valid it is also necessary to satisfy the
requirements of Subdivision P (which provides a “right to
negotiate”).
Extinguishment/non-extinguishment; procedural rights and
compensation
(6) This Division provides that, in general, valid future acts are subject
to the non-extinguishment principle. The Division also deals with procedural
rights and compensation for the acts.
Activities etc. prevail over native title
(7) To avoid doubt, section 44H provides that a valid lease, licence,
permit or authority, and any activity done under it, prevail over any native
title rights and interests and their exercise.
Statutory access rights
(8) This Division confers access rights in respect of non-exclusive
agricultural and non-exclusive pastoral leases on certain persons covered by
registered native title claims (see Subdivision Q).
Indigenous land use agreement provisions
(1) To the extent that a future act is covered by section 24EB (which
deals with the effect of indigenous land use agreements on future acts), it is
not covered by any of the sections listed in paragraphs 24AA(4)(a) to
(k).
Other provisions
(2) To the extent that a future act is covered by a particular section in
the list in paragraphs 24AA(4)(a) to (k), it is not covered by a section that is
lower in the list.
Note: It is important to know under which particular
provision a future act is valid because the consequences in terms of
compensation and procedural rights may be different.
The regulations may impose requirements to notify persons of acts, or
classes of acts, that are to any extent valid under this Division (whether such
notice is required to be given before or after the acts are done).
An agreement meeting the requirements of sections 24BB to 24BE is an
indigenous land use agreement.
Note: Subdivisions C and D provide for other kinds of
indigenous land use agreements.
The agreement must be about one or more of the following matters in
relation to an area:
(a) the doing, or the doing subject to conditions (which may be about
procedural matters), of particular future acts, or future acts included in
classes;
(b) withdrawing, amending, varying or doing any other thing in relation to
an application under Division 1 of Part 3 in relation to land or waters in the
area;
(c) the relationship between native title rights and interests and other
rights and interests in relation to the area;
(d) the manner of exercise of any native title rights and interests or
other rights and interests in relation to the area;
(e) extinguishing native title rights and interests in relation to land or
waters in the area by the surrender of those rights and interests to the
Commonwealth, a State or a Territory;
(f) any other matter concerning native title rights and interests in
relation to the area.
Note 1: If the agreement involves consent to the doing of a
future act or class of future act, or the doing of a future act or class of
future act subject to conditions, it must include a statement to that effect:
see paragraph 24EB(1)(b).
Note 2: If a future act covered by such a statement would
otherwise be subject to the “right to negotiate” provisions in
Subdivision P, the agreement must also include a statement that those provisions
are not intended to apply: see paragraph 24EB(1)(c).
Note 3: If the agreement involves the extinguishment of
native title by surrender, it must include a statement to that effect: see
paragraph 24EB(1)(d).
The agreement must not be made unless there are registered native title
bodies corporate in relation to all of the area.
Registered native title bodies corporate
(1) All of the registered native title bodies corporate in relation to the
area must be parties to the agreement.
Governments
(2) If the agreement makes provision for the extinguishment of native
title rights and interests by surrendering them to the Commonwealth, a State or
a Territory as mentioned in paragraph 24BB(e), the Commonwealth, State or
Territory must be a party to the agreement. If the agreement does not make such
provision, the Commonwealth, a State or a Territory may still be a
party.
Others
(3) Any other person or persons may be parties.
(1) The agreement may be given for any consideration, and subject to any
conditions, agreed by the parties (other than consideration or conditions that
contravene any law).
Consideration may be freehold grant or other interests
(2) Without limiting subsection (1), the consideration may be the grant of
a freehold estate in any land, or any other interests in relation to land
whether statutory or otherwise.
Persons wishing to make the agreement may request assistance from the
NNTT or a recognised State/Territory body in negotiating the
agreement.
Application
(1) Any party to the agreement may, if all of the other parties agree,
apply in writing to the Registrar for the agreement to be registered on the
Register of Indigenous Land Use Agreements.
Things accompanying application
(2) The application must be accompanied by a copy of the agreement and any
other prescribed documents or information.
(1) The Registrar must:
(a) give notice of the agreement, in accordance with subsection (2), to
any of the following who are not parties to the agreement:
(i) the Commonwealth Minister;
(ii) if the agreement covers an area within the jurisdictional limits of a
State or Territory—the State Minister or the Territory Minister for the
State or Territory;
(iii) any representative Aboriginal/Torres Strait Islander body for the
area covered by the agreement;
(iv) any local government body for the area covered by the
agreement;
(v) any other person whom the Registrar, having regard to the nature of
the agreement, considers appropriate; and
(b) notify the public in the determined way of the agreement in accordance
with subsection (2).
Content of notice
(2) The notice under paragraph (1)(a) or (b) must:
(a) describe the area covered by the agreement; and
(b) state the name of each party to the agreement and the address at which
the party can be contacted; and
(c) set out any statements included in the agreement that are of a kind
mentioned in paragraph 24EB(1)(b), (c) or (d).
Unless any of the parties to the agreement advises the Registrar, within
1 month after the Registrar gives notice under section 24BH, that the party does
not wish the agreement to be registered on the Register of Indigenous Land Use
Agreements, the Registrar must register the agreement on that
Register.
An agreement meeting the requirements of sections 24CB to 24CE is an
indigenous land use agreement.
Note: Subdivisions B and D provide for other kinds of
indigenous land use agreements.
The agreement must be about one or more of the following matters in
relation to an area:
(a) the doing, or the doing subject to conditions (which may be about
procedural matters), of particular future acts, or future acts included in
classes;
(b) withdrawing, amending, varying or doing any other thing in relation to
an application under Division 1 of Part 3 in relation to land or waters in the
area;
(c) the relationship between native title rights and interests and other
rights and interests in relation to the area;
(d) the manner of exercise of any native title rights and interests or
other rights and interests in relation to the area;
(e) extinguishing native title rights and interests in relation to land or
waters in the area by the surrender of those rights and interests to the
Commonwealth, a State or a Territory;
(f) any other matter concerning native title rights and interests in
relation to the area;
(g) any matter concerning rights conferred by Subdivision Q (which gives
certain persons covered by registered native title claims rights of access to
non-exclusive agricultural and pastoral leases).
Note 1: If the agreement involves consent to the doing of a
future act or class of future act, or the doing of a future act or class of
future act subject to conditions, it must include a statement to that effect:
see paragraph 24EB(1)(b).
Note 2: If a future act covered by such a statement would
otherwise be subject to the “right to negotiate” provisions in
Subdivision P, the agreement must also include a statement that those provisions
are not intended to apply: see paragraph 24EB(1)(c).
Note 3: If the agreement involves the extinguishment of
native title by surrender, it must include a statement to that effect: see
paragraph 24EB(1)(d).
The agreement must not be made if there are registered native title
bodies corporate in relation to all of the area.
Note: If there are registered native title bodies corporate
for all of the area, an agreement under Subdivision B may be
made.
Native title group to be parties
(1) All persons in the native title group (see subsection (2) or (3)) in
relation to the area must be parties to the agreement.
Native title group where registered claimant or body
corporate
(2) If there is a registered native title claimant, or a registered native
title body corporate, in relation to any of the land or waters in the area, the
native title group consists of:
(a) all registered native title claimants in relation to land or waters in
the area; and
Note 1: Registered native title claimants are persons whose
names appear on the Register of Native Title Claims as applicants in relation to
claims to hold native title: see the definition of registered native title
claimant in section 253.
Note 2: The agreement will bind all members of the native
title claim group concerned: see paragraph 24EA(1)(b).
(b) all registered native title bodies corporate in relation to land or
waters in the area.
Native title group where no registered claimant or body
corporate
(3) If subsection (2) does not apply, the native title group
consists of one or more of the following:
(a) any person who claims to hold native title in relation to land or
waters in the area;
(b) any representative Aboriginal/Torres Strait Islander body for the
area.
Other native title parties
(4) If the native title group is covered by subsection (2), one or more of
the following may also be parties to the agreement:
(a) any other person who claims to hold native title in relation to land
or waters in the area;
(b) any representative Aboriginal/Torres Strait Islander body for the
area.
Government parties
(5) If the agreement makes provision for the extinguishment of native
title rights and interests by surrendering them to the Commonwealth, a State or
Territory as mentioned in paragraph 24CB(e), the Commonwealth, State or
Territory must be a party to the agreement. If the agreement does not make such
provision, the Commonwealth, a State or a Territory may still be a
party.
Other parties
(6) Any other person may be a party to the agreement.
(1) The agreement may be given for any consideration, and subject to any
conditions, agreed by the parties (other than consideration or conditions that
contravene any law).
Consideration may be freehold grant or other interests
(2) Without limiting subsection (1), the consideration may be the grant of
a freehold estate in any land, or any other interests in relation to land
whether statutory or otherwise.
Persons wishing to make the agreement may request assistance from the
NNTT or a recognised State/Territory body in negotiating the
agreement.
Application
(1) Any party to the agreement may, if all of the other parties agree,
apply in writing to the Registrar for the agreement to be registered on the
Register of Indigenous Land Use Agreements.
Things accompanying application
(2) The application must be accompanied by a copy of the agreement and any
other prescribed documents or information.
Certificate or statement to accompany application in certain
cases
(3) Also, the application must either:
(a) have been certified by all representative Aboriginal/Torres Strait
Islander bodies for the area in performing their functions under paragraph
202(4)(e) in relation to the area; or
(b) include a statement to the effect that the following requirements have
been met:
(i) all reasonable efforts have been made (including by consulting all
representative Aboriginal/Torres Strait Islander bodies for the area) to ensure
that all persons who hold or may hold native title in relation to land or waters
in the area covered by the agreement have been identified;
(ii) all of the persons so identified have authorised the making of the
agreement;
Note: The word authorise is defined in section
251A.
together with a further statement briefly setting out the grounds on
which the Registrar should be satisfied that the requirements are met.
(1) The Registrar must:
(a) give notice of the agreement, in accordance with subsection (2), to
any of the following who are not parties to the agreement:
(i) the Commonwealth Minister;
(ii) if the agreement covers an area within the jurisdictional limits of a
State or Territory—the State Minister or the Territory Minister for the
State or Territory;
(iii) any representative Aboriginal/Torres Strait Islander body for the
area covered by the agreement;
(iv) any local government body for the area covered by the
agreement;
(v) any other person whom the Registrar, having regard to the nature of
the agreement, considers appropriate; and
(b) notify the public in the determined way of the agreement in accordance
with subsection (2).
Content of notice
(2) The notice under paragraph (1)(a) or (b) must:
(a) describe the area covered by the agreement; and
(b) state the name of each party to the agreement and the address at which
the party can be contacted; and
(c) set out any statements included in the agreement that are of a kind
mentioned in paragraph 24EB(1)(b),(c) or (d); and
(d) include a statement that, within the period (the notice
period) of 3 months after the notification day (see subsection
(3)):
(i) if the application was certified by representative Aboriginal/Torres
Strait Islander bodies for the area (see paragraph 24CG(3)(a))—any person
claiming to hold native title in relation to any of the land or waters in the
area covered by the agreement may object, in writing to the Registrar, against
registration of the agreement on the ground that the requirements of paragraphs
202(8)(a) and (b) were not satisfied in relation to the certification;
or
(ii) if the application contained a statement as mentioned in paragraph
24CG(3)(b) to the effect that certain requirements have been met (in summary,
relating to identifying native title holders and ensuring that they have
authorised the making of the agreement)—any person claiming to hold native
title in relation to land or waters in the area covered by the agreement may
wish, in response to the notice, to make a native title determination
application or equivalent application under a law of a State or
Territory.
Notice to specify day
(3) The notice under paragraph (1)(a) or (b) must specify a day as the
notification day for the agreement. Each such notice in relation
to the agreement must specify the same day.
Which days may be specified
(4) That day must be a day by which, in the Registrar’s opinion, it
is reasonable to assume that all notices under paragraph (1)(a) or (b) in
relation to the agreement will have been received by, or will otherwise have
come to the attention of, the persons who must be notified under those
paragraphs.
Making objections
(1) If the application was certified by representative Aboriginal/Torres
Strait Islander bodies for the area (see paragraph 24CG(3)(a)), any person
claiming to hold native title in relation to any of the land or waters in the
area covered by the agreement may object, in writing to the Registrar, against
registration of the agreement on the ground that the requirements of paragraphs
202(8)(a) and (b) were not satisfied in relation to the certification.
Assistance in withdrawing objection
(2) If an objection is made within the notice period, the parties to the
agreement may request assistance from the NNTT or a recognised State/Territory
body in negotiating with the person making the objection with a view to having
the objection withdrawn.
The Registrar must, after the end of the notice period, decide whether or
not to register an agreement covered by an application under this Subdivision on
the Register of Indigenous Land Use Agreements. However, in a case where section
24CL is to be applied, the Registrar must not do so until all persons covered by
paragraph (2)(b) of that section are known.
Registration only if conditions satisfied
(1) If the application for registration of the agreement was certified by
representative Aboriginal/Torres Strait Islander bodies for the area (see
paragraph 24CG(3)(a)) and the conditions in this section are satisfied, the
Registrar must register the agreement. If the conditions are not satisfied, the
Registrar must not register the agreement.
First condition
(2) The first condition is that:
(a) no objection under section 24CI against registration of the agreement
was made within the notice period; or
(b) one or more objections under section 24CI against registration of the
agreement were made within the notice period, but they have all been withdrawn;
or
(c) one or more objections under section 24CI against registration of the
agreement were made within the notice period, all of them have not been
withdrawn, but none of the persons making them has satisfied the Registrar that
the requirements of paragraphs 202(8)(a) and (b) were not satisfied in relation
to the certification of the application by any of the representative
Aboriginal/Torres Strait Islander bodies concerned.
Second condition
(3) The second condition is that if, when the Registrar proposes to
register the agreement, there is a registered native title body corporate in
relation to any land or waters in the area covered by the agreement, that body
corporate is a party to the agreement.
Matters to be taken into account
(4) In deciding whether he or she is satisfied as mentioned in paragraph
(2)(c), the Registrar must take into account any information given in relation
to the matter by:
(a) the persons making the objections mentioned in that paragraph;
and
(b) the representative Aboriginal/Torres Strait Islander bodies that
certified the application;
and may, but need not, take into account any other matter or
thing.
Registration only if conditions satisfied
(1) If the application for registration of the agreement contained a
statement as mentioned in paragraph 24CG(3)(b) to the effect that certain
requirements have been met (in summary, relating to identifying native title
holders and ensuring that they have authorised the making of the agreement), and
the conditions in subsections (2) and (3) of this section are satisfied, the
Registrar must register the agreement. If the conditions are not satisfied, the
Registrar must not register the agreement.
First condition
(2) The first condition is that the following persons are parties to the
agreement:
(a) any person who is, at the end of the notice period, a registered
native title claimant or a registered native title body corporate in relation to
any of the land or waters in the area covered by the agreement; and
(b) any person who, after the end of the notice period, becomes a
registered native title claimant in relation to any of the land or waters in the
area covered by the agreement, where the application containing the claim was
made before the end of the notice period and:
(i) the claim is accepted by the Registrar for registration under
subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy
conditions equivalent to those set out in sections 190B and 190C under a law of
a State or Territory; or
(ii) the claim is accepted by the Registrar for registration as a result
of an application under subsection 190D(2), where the application was made not
more than 28 days after the notice under subsection 190D(1) was given;
or
(iii) the claim is found to satisfy conditions equivalent to those set out
in sections 190B and 190C under a provision of a law of a State or Territory to
similar effect as section 190D, and the application under that provision was
made within a time period corresponding to that set out in subparagraph (ii) of
this paragraph.
Second condition
(3) The second condition is that the Registrar considers that the
requirements in paragraph 24CG(3)(b) (in summary, relating to identifying native
title holders and ensuring that they have authorised the making of the
agreement) have been met.
Matters to be taken into account
(4) In deciding whether the requirements have been met, the Registrar must
take into account:
(a) the statements in the application; and
(b) any information the Registrar is given on the matter by any
representative Aboriginal/Torres Strait Islander body or by any other body or
person;
and may, but need not, take into account any other matter or
thing.
An agreement meeting the requirements of sections 24DB to 24DF is an
indigenous land use agreement.
Note: Subdivisions B and C provide for other kinds of
indigenous land use agreements.
The agreement must be about one or more of the following matters in
relation to an area:
(a) the doing, or the doing subject to conditions (which may be about
procedural matters), of particular future acts, or future acts included in
classes;
(b) withdrawing, amending, varying or doing any other thing in relation to
an application under Division 1 of Part 3 in relation to land or waters in the
area;
(c) the relationship between native title rights and interests and other
rights and interests in relation to the area;
(d) the manner of exercise of any native title rights and interests or
other rights and interests in relation to the area;
(e) providing a framework for the making of other agreements about matters
relating to native title rights and interests;
(f) any other matter concerning native title rights and interests in
relation to the area;
(g) any matter concerning rights conferred by Subdivision Q (which gives
certain persons covered by registered native title claims rights of access to
non-exclusive agricultural and pastoral leases).
Note 1: If the agreement involves consent to the doing of a
future act or class of future act, or the doing of a future act or class of
future act subject to conditions, it must include a statement to that effect:
see paragraph 24EB(1)(b).
Note 2: If a future act covered by such a statement would
otherwise be subject to the “right to negotiate” provisions in
Subdivision P, the agreement must also include a statement that those provisions
are not intended to apply: see paragraph 24EB(1)(c).
The agreement must not provide for the extinguishment of any native title
rights or interests.
Note: The non-extinguishment principle will apply to any
future acts consented to in the agreement: see subsection
24EB(3).
No bodies corporate for whole of area
(1) The agreement must not be made if there are registered native title
bodies corporate in relation to all of the land and waters in the
area.
Note: If there are registered native title bodies corporate
for all of the area, an agreement under Subdivision B may be
made.
Body corporate or representative body for area
(2) There must be at least one registered native title body corporate in
relation to land or waters in the area or at least one representative
Aboriginal/Torres Strait Islander body for the area.
Native title group and relevant governments to be parties
(1) All persons in the native title group (see subsection (2)) in relation
to the area must be parties to the agreement, as must every relevant government
(see subsection (3)).
Native title group
(2) The native title group consists of:
(a) all registered native title bodies corporate in relation to land or
waters in the area; and
(b) all representative Aboriginal/Torres Strait Islander bodies for the
area.
Relevant government
(3) Each of the following is a relevant
government:
(a) the Commonwealth, if any of the area covered by the agreement is a
place outside the jurisdictional limits of the States and Territories;
(b) a State or Territory, if any of the area covered by the agreement is
within the jurisdictional limits of the State or Territory.
Other parties
(4) Any of the following may also be a party to the agreement:
(a) any registered native title claimant in relation to land or waters in
the area;
Note 1: Registered native title claimants are persons whose
names appear on the Register of Native Title Claims as applicants in relation to
claims to hold native title: see the definition of registered native title
claimant in section 253.
Note 2: The agreement will bind all members of the native
title claim group concerned: see paragraph 24EA(1)(b).
(b) any other person who claims to hold native title in relation to land
or waters in the area;
(c) any other person.
(1) The agreement may be given for any consideration, and subject to any
conditions, agreed by the parties (other than consideration or conditions that
contravene any law).
Consideration may be freehold grant or other interests
(2) Without limiting subsection (1), the consideration may be the grant of
a freehold estate in any land, or any other interests in relation to land
whether statutory or otherwise.
Persons wishing to make the agreement may request assistance from the
NNTT or a recognised State/Territory body in negotiating the
agreement.
Application
(1) Any party to the agreement may, if all of the other parties agree,
apply in writing to the Registrar for the agreement to be registered on the
Register of Indigenous Land Use Agreements.
Things accompanying application
(2) The application must be accompanied by a copy of the agreement and any
other prescribed documents or information.
Notice to be given
(1) The Registrar must:
(a) give notice of the agreement, in accordance with subsection (2), to
any of the following who are not parties to the agreement:
(i) the Commonwealth Minister;
(ii) if the agreement covers an area within the jurisdictional limits of a
State or Territory—the State Minister or the Territory Minister for the
State or Territory;
(iii) any local government body for the area covered by the
agreement;
(iv) any other person whom the Registrar, having regard to the nature of
the agreement, considers appropriate; and
(b) notify the public in the determined way of the agreement in accordance
with subsection (2).
Content of notice
(2) The notice under paragraph (1)(a) or (b) must:
(a) describe the area covered by the agreement; and
(b) state the name of each party to the agreement and the address at which
the party can be contacted; and
(c) set out any statements included in the agreement that are of a kind
mentioned in paragraph 24EB(1)(b) or (c); and
(d) include a statement that, within the period (the notice
period) of 3 months after the notification day (see subsection (3)), any
person claiming to hold native title in relation to any of the land or waters in
the area covered by the agreement may:
(i) obtain a copy of the agreement from the Registrar; and
(ii) object, in writing to the Registrar, against registration of the
agreement on the ground that it would not be fair and reasonable to do
so.
Notice to specify day
(3) The notice must specify a day as the notification day
for the agreement. Each such notice in relation to the agreement must specify
the same day.
Which days may be specified
(4) That day must be a day by which, in the Registrar’s opinion, it
is reasonable to assume that all notices under paragraph (1)(a) or (b) in
relation to the agreement will have been received by, or will otherwise have
come to the attention of, the persons who must be notified under those
paragraphs.
Request for copy of agreement
(5) If a person claiming to hold native title in relation to any of the
land or waters covered by the agreement requests a copy of the agreement, the
Registrar must comply with the request.
Making objections
(1) Any person claiming to hold native title in relation to any of the
land or waters in the area covered by the agreement may make an application to
the Registrar objecting against registration of the agreement on the ground that
it would not be fair and reasonable to register the agreement.
Assistance in withdrawing objection
(2) If an objection is made within the notice period, the parties may
request assistance from the NNTT or a recognised State/Territory body in
negotiating with the person making the objection with a view to having the
objection withdrawn.
The Registrar must, after the end of the notice period, decide whether or
not to register the agreement on the Register of Indigenous Land Use
Agreements.
Registration only if conditions satisfied
(1) If a condition in subsection (2) is satisfied, the Registrar must
register the agreement. If none of the conditions is satisfied, the Registrar
must not register the agreement.
Conditions
(2) The conditions are that:
(a) no objection against registration of the agreement was made within the
notice period; or
(b) one or more objections against registration of the agreement were made
within the notice period, but they have all been withdrawn; or
(c) one or more objections against registration of the agreement were made
during the notice period, all of them have not been withdrawn, but none of the
persons making them has satisfied the NNTT or a recognised State/Territory body
that it would not be fair and reasonable to register the agreement, having
regard to:
(i) the content of the agreement; and
(ii) the effect of the agreement on native title rights and interests;
and
(iii) any benefits provided under the agreement to current native title
holders (whether or not identified at the time the agreement is made) and their
successors, and the way in which those benefits are to be distributed;
and
(iv) any other relevant circumstance.
Note: Sections 77A and 77B deal with applications to the
NNTT objecting against registration of the agreement.
The regulations may provide for procedures and conditions for the
registration of agreements under this Subdivision on the Register of Indigenous
Land Use Agreements. Agreements are to be registered if either those procedures
and conditions or the ones set out in sections 24DH to 24DL are complied
with.
(1) While details of an agreement are entered on the Register of
Indigenous Land Use Agreements, the agreement has effect, in addition to any
effect that it may have apart from this subsection, as if:
(a) it were a contract among the parties to the agreement; and
(b) all persons holding native title in relation to any of the land or
waters in the area covered by the agreement, who are not already parties to the
agreement, were bound by the agreement in the same way as the registered native
title bodies corporate, or the native title group, as the case may be.
Note: Section 199B specifies the details of the agreement
that are required to be entered on the Register.
Only certain persons bound by agreement
(2) To avoid doubt, a person is not bound by the agreement unless the
person is a party to the agreement or a person to whom paragraph (1)(b)
applies.
Legislation etc. to give effect to agreement not affected
(3) If the Commonwealth, a State or a Territory is a party to an
indigenous land use agreement whose details are entered in the Register of
Indigenous Land Use Agreements, this Act does not prevent the Commonwealth, the
State or the Territory doing any legislative or other act to give effect to any
of its obligations under the agreement.
Coverage of section
(1) The consequences set out in this section apply if:
(a) a future act is done; and
(b) when it is done, there are on the Register of Indigenous Land Use
Agreements details of an agreement that includes a statement to the effect that
the parties consent to:
(i) the doing of the act or class of act in which the act is included;
or
(ii) the doing of the act, or class of act in which the act is included,
subject to conditions; and
(c) if the act is, apart from this Subdivision, an act to which
Subdivision P (which deals with the right to negotiate) applies—the
agreement also includes a statement to the effect that Subdivision P is not
intended to apply; and
Note: The fact that, under the “right to
negotiate” provisions in Subdivision P, agreements can be made after
notice of an act is given as mentioned in section 29 does not prevent an
indigenous land use agreement being made that consents to the doing of the
act.
(d) if the act is the surrender of native title under an agreement covered
by Subdivision B or C—the agreement also includes a statement to the
effect that the surrender is intended to extinguish the native title rights and
interests.
Validation of act
(2) The act is valid to the extent that it affects native title in
relation to land or waters in the area covered by the agreement.
Non-extinguishment principle
(3) Unless a statement of the kind mentioned in paragraph (1)(d) in
relation to the act is included in the agreement, the non-extinguishment
principle applies to the act.
Restriction on compensation where Subdivision B agreement
(4) In the case of an agreement under Subdivision B, the following are not
entitled to any compensation for the act under this Act, other than compensation
provided for in the agreement:
(a) any registered native title body corporate who is a party to the
agreement;
(b) any common law holder of native title:
(i) for whom such a registered native title body corporate holds native
title rights and interests on trust; or
(ii) of whom such a registered native title body corporate is the agent or
representative;
Note: For the definition of common law holder,
see section 56.
(c) any native title holder who is entitled to any of the benefits
provided under the agreement.
Restriction on compensation where Subdivision C agreement
(5) In the case of an agreement under Subdivision C, the following are not
entitled to any compensation for the act under this Act, other than compensation
provided for in the agreement:
(a) any native title holder who is entitled to any of the benefits
provided under the agreement;
(b) any native title holder who authorised the making of the agreement as
mentioned in:
(i) if the application was certified by representative Aboriginal/Torres
Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph
202(8)(b); or
(ii) if the application included statements as mentioned in paragraph
24CG(3)(b) to the effect that certain requirements have been met (in summary,
relating to identifying all native title holders and ensuring that they have
authorised the making of the agreement)—that paragraph.
Restriction on compensation where Subdivision D agreement
(6) In the case of an agreement under Subdivision D, no native title
holder who is entitled to any of the benefits provided under the agreement is
entitled to any compensation for the act under this Act, other than compensation
provided for in the agreement.
Compensation under Division 5
(7) If any native title holder in relation to the land or waters covered
by the agreement (except one who, because of subsection (4), (5) or (6), is not
entitled to compensation other than that provided for in the agreement) would be
entitled to compensation under subsection 17(2) for the act on the assumption
that it was a past act referred to in that subsection:
(a) he or she is entitled, in accordance with Division 5, to compensation
for the act; and
(b) he or she may recover the compensation from:
(i) if subparagraph (ii) does not apply—the Crown in right of the
Commonwealth, a State or a Territory (according to whether the act is
attributable to the Commonwealth, the State or the Territory); or
(ii) any person or persons who, under an agreement in writing with the
Commonwealth, the State or the Territory, are liable to pay the
compensation.
The fact that this Subdivision deals with agreements with native title
holders that relate to their native title rights and interests does not imply
that the Commonwealth, a State or a Territory cannot:
(a) make other agreements; or
(b) legislate in relation to the making of other agreements;
with native title holders that relate to their native title rights and
interests (other than agreements consenting to the doing of future
acts).
(1) If an area is subject to section 24FA protection (see sections 24FB,
24FC and 24FD) at a particular time:
(a) any future act by any person in relation to the area that is done at
that time is valid; and
(b) if such an act extinguishes native title to any extent—the
native title holders are entitled to compensation, in accordance with Division
5, for the act in so far as it has that effect; and
(c) if the act mentioned in paragraph (a) does not so extinguish native
title and the native title holders would be entitled to compensation under
subsection 17(2) for the act on the assumption that it was a past act referred
to in that subsection—they are entitled, in accordance with Division 5, to
compensation for the act.
Who pays compensation
(2) The native title holders may recover the compensation from:
(a) if the act is attributable to the Commonwealth—the Crown in
right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in
right of the State or Territory.
An area is subject to section 24FA protection at a
particular time if:
(a) before that time, a non-claimant application (see section 253), or a
corresponding application for an approved determination of native title under a
law of a State or Territory, has been made by or on behalf of a Minister, the
Crown in any capacity, or a statutory authority; and
(b) the area is the whole of the area covered by the application and the
application has not been amended as to area; and
(c) the period specified in the notice given under section 66, or under a
corresponding provision of the law of the State or Territory, has ended;
and
(d) at the end of that period, there is no relevant native title claim
(see section 24FE) covering the area or a part of the area; and
(e) the application has not been withdrawn, dismissed or otherwise
finalised; and
(f) there is no entry on the National Native Title Register, included
under paragraph 193(1)(a) or (b), specifying that native title exists in
relation to the area or a part of the area.
An area is subject to section 24FA protection
at a particular time if:
(a) before that time, a non-claimant application, or a corresponding
application for an approved determination of native title under a law of a State
or Territory, has been made; and
(b) the application is not covered by paragraph 24FB(a); and
(c) the area is the whole or a part of the area covered by the
application; and
(d) the period specified in the notice given under section 66, or under a
corresponding provision of the law of the State or Territory, has ended;
and
(e) either:
(i) at the end of that period, there is no relevant native title claim
(see section 24FE) covering the area; or
(ii) after the end of that period, but before the particular time, all
entries that relate to a relevant native title claim that covered the area are
removed from the Register of Native Title Claims or cease to cover the area;
and
(f) the application, in so far as it relates to that area, has not been
withdrawn, dismissed or otherwise finalised; and
(g) there is no entry on the National Native Title Register, included
under paragraph 193(1)(a) or (b), specifying that native title exists in
relation to the area.
An area is subject to section 24FA protection
at a particular time if it is covered by an entry on the National Native Title
Register, included under paragraph 193(1)(a) or (b), specifying that no native
title exists in relation to the area.
For the purposes of this Subdivision, there is a relevant native
title claim covering an area at the end of the period mentioned in
paragraph 24FB(c) or 24FC(d) if:
(a) at that time, there is an entry covering that area on the Register of
Native Title Claims; or
(b) after that time, an entry covering that area is included on the
Register of Native Title Claims, provided the application containing the claim
was made before that time and:
(i) the claim is accepted by the Registrar for registration under
subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy
conditions equivalent to those set out in sections 190B and 190C under a law of
a State or Territory; or
(ii) the claim is accepted by the Registrar for registration as a result
of an application under subsection 190D(2) and the application was made not more
than 28 days after the notice under subsection 190D(1) was given; or
(iii) the claim is found to satisfy conditions equivalent to those set out
in sections 190B and 190C under a provision of a law of a State or Territory to
similar effect as section 190D, and the application under that provision was
made within a time period corresponding to that set out in subparagraph
(ii).
Primary production activity
(1) The expression primary production activity includes the
following:
(a) cultivating land;
(b) maintaining, breeding or agisting animals;
(c) taking or catching fish or shellfish;
(d) forest operations (defined in section 253);
(e) horticultural activities (see section 253 for the definition of
horticulture);
(f) aquacultural activities;
(g) leaving fallow or de-stocking any land in connection with the doing of
any thing that is a primary production activity.
Mining excluded
(2) The expression primary production activity does not
include mining.
(1) This section applies to a future act if:
(a) a non-exclusive agricultural lease (see section 247B) or non-exclusive
pastoral lease (see section 248B) was granted on or before 23 December 1996;
and
(b) the grant was valid (including because of Division 2 or 2A);
and
Note: As at the commencement of this section, grants before
1 January 1994 that were invalid because of native title have been validated by
or under Division 2.
(c) the future act takes place after 23 December 1996; and
(d) the future act permits or requires the carrying on of any of the
following while the lease (including as renewed on one or more occasions) is in
force:
(i) a primary production activity (see section 24GA) on the area covered
by the lease; or
(ii) another activity, on the area covered by the lease, that is
associated with or incidental to a primary production activity covered by
subparagraph (i), provided that, when the other activity is being carried on,
the majority of the area covered by the lease is used for primary production
activities.
Note: For the renewal, re-grant, re-making or extension of
certain acts covered by this section, see Subdivision I.
Farm tourism included
(2) This section applies to a future act that:
(a) takes place after 23 December 1996; and
(b) permits or requires a farm tourism activity in the area covered by a
lease meeting the requirements of paragraphs (1)(a) and (b) while the lease is
in force (including as renewed on one or more occasions).
Exception to subsection (2)
(3) However, this section does not apply to a future act permitting or
requiring farm tourism if the act permits or requires tourism that involves
observing activities or cultural works of Aboriginal peoples or Torres Strait
Islanders.
Certain acts not covered
(4) This section does not apply to a future act if:
(a) where the lease covered by paragraph (1)(a) is a non-exclusive
pastoral lease covering an area greater than 5,000 hectares—the act has
the effect that the majority of the area covered by the lease is used for
purposes other than pastoral purposes; or
(b) in any case—the act converts a lease covered by paragraph (1)(a)
into a lease conferring a right of exclusive possession, or into a freehold
estate, over any of the land or waters covered by the lease.
Note: If such an act is done in exercise of a legally
conferred right, it could be covered by section 24ID. A lease conferring such
rights or a freehold estate could be granted after a compulsory acquisition of
native title under section 24MD or under certain indigenous land use
agreements.
Validation of act
(5) If this section applies to a future act, the act is valid.
Non-extinguishment principle
(6) The non-extinguishment principle applies to the act.
Compensation
(7) The native title holders concerned are entitled to compensation for
the act in accordance with Division 5.
Who pays compensation
(8) The compensation is payable by:
(a) if the act is attributable to the Commonwealth—the Crown in
right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in
right of the State or Territory.
Notification
(9) If:
(a) the primary production activity mentioned in subparagraph (1)(d)(i) or
(ii) is forest operations, a horticultural activity or an aquacultural activity;
or
(b) the lease mentioned in paragraph (1)(a) is a non-exclusive pastoral
lease and the primary production activity mentioned in subparagraph (1)(d)(i) or
(ii) is an agricultural activity;
before the future act is done, the person proposing to do the act
must:
(c) notify, in the way determined in writing by the Commonwealth Minister,
any representative Aboriginal/Torres Strait Islander bodies, registered native
title bodies corporate and registered native title claimants in relation to the
land or waters covered by the non-exclusive agricultural lease or non-exclusive
pastoral lease that the act, or acts of that class, are to be done in relation
to the particular land or waters; and
(d) give them an opportunity to comment on the act or class of
acts.
(1) This section applies to an activity if:
(a) a non-exclusive agricultural lease (see section 247B) or non-exclusive
pastoral lease (see section 248B) was granted on or before 23 December 1996;
and
(b) the grant was valid (including because of Division 2 or 2A);
and
Note: As at the commencement of this section, grants before
1 January 1994 that were invalid because of native title have been validated by
or under Division 2.
(c) the activity is the carrying on, after 23 December 1996 and while the
lease (including as renewed on one or more occasions) is in force, of any of the
following:
(i) a primary production activity on the area covered by the lease;
or
(ii) another activity, on the area covered by the lease, that is
associated with or incidental to a primary production activity covered by
subparagraph (i), provided that, when the other activity is being carried on,
the majority of the area covered by the lease is used for primary production
activities.
Activities prevail over native title etc.
(2) To avoid doubt:
(a) the doing of any activity mentioned in paragraph (1)(c) prevails over
any native title rights and interests and any exercise of those rights and
interests, but does not extinguish them; and
(b) the existence and exercise of native title rights and interests do not
prevent the carrying on of any such activity.
Note: This subsection is not intended to imply that the
person carrying on the activity is not subject to the laws of a State or
Territory.
Compensation
(3) Native title holders are not entitled to compensation under this Act
for the carrying on of the activity.
Note: Any compensation to which the native title holders may
be entitled under this Act for the grant of the lease, or other authority for
the doing of the activity, may take into account the doing of the
activity.
(1) This section applies to a future act if:
(a) a freehold estate, an agricultural lease (see section 247) or a
pastoral lease (see section 248) was granted on or before 23 December 1996;
and
(b) the grant was valid (including because of Division 2 or 2A);
and
Note: As at the commencement of this section, grants before
1 January 1994 that were invalid because of native title have been validated by
or under Division 2.
(c) the future act takes place after 23 December 1996; and
(d) the future act is not:
(i) the grant of a lease; or
(ii) any act that confers a right of exclusive possession over land;
and
(e) the future act permits or requires the carrying on of grazing, or an
activity consisting of or relating to gaining access to or taking water,
that:
(i) takes place while the freehold estate exists or the agricultural lease
or pastoral lease (including as renewed on one or more occasions) is in force;
and
(ii) is directly connected to the carrying on of any primary production
activity on the area covered by the freehold estate or the agricultural lease or
pastoral lease; and
(iii) takes place in an area adjoining or near the area covered by the
freehold estate or the agricultural lease or pastoral lease; and
(iv) does not prevent native title holders in relation to land or waters
in the area in which the activity will be carried on from having reasonable
access to the area.
Example 1: An example of an act covered by this section is
the conferral of rights to graze cattle in an area adjoining that covered by an
agricultural lease or pastoral lease, if the cattle are also grazed in the area
covered by the lease.
Example 2: Another example is the conferral of rights to
take water from an area near that covered by an agricultural lease or pastoral
lease, if the water is for use in carrying on primary production activities in
the area covered by the lease.
Note: For the renewal, re-grant, re-making or extension of
certain acts covered by this section, see Subdivision I.
Validation of act
(2) If this section applies to a future act, the act is valid.
Non-extinguishment principle
(3) The non-extinguishment principle applies to the act.
Compensation
(4) The native title holders concerned are entitled to compensation for
the act in accordance with Division 5.
Who pays compensation
(5) The compensation is payable by:
(a) if the act is attributable to the Commonwealth—the Crown in
right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in
right of the State or Territory.
Notification
(6) Before the act is done, the person proposing to do the act
must:
(a) notify, in the way determined in writing by the Commonwealth Minister,
any representative Aboriginal/Torres Strait Islander bodies, registered native
title bodies corporate and registered native title claimants in relation to the
land or waters that will be affected by the act that the act, or acts of that
class, are to be done in relation to the land or waters concerned; and
(b) give them an opportunity to comment on the act or class of
acts.
(1) This section applies to a future act if:
(a) a non-exclusive agricultural lease (see section 247B) or a
non-exclusive pastoral lease (see section 248B) was granted on or before 23
December 1996; and
(b) the grant was valid (including because of Division 2 or 2A);
and
Note: As at the commencement of this section, grants before
1 January 1994 that were invalid because of native title have been validated by
or under Division 2.
(c) the future act takes place after 23 December 1996 and while the lease
(including as renewed on one or more occasions) is in force; and
(d) the future act is not the grant of a lease; and
(e) the future act confers on any person (including the lessee) a
right:
(i) to cut and remove timber; or
(ii) to extract and remove gravel; or
(iii) to quarry for and remove rocks; or
(iv) to obtain and remove sand, soil or other resources (except so far as
doing so constitutes mining);
from the area covered by the non-exclusive agricultural lease or
non-exclusive pastoral lease; and
(f) before the future act is done, the person proposing to do the
act:
(i) has notified, in the way determined in writing by the Commonwealth
Minister, any representative Aboriginal/Torres Strait Islander bodies,
registered native title bodies corporate and registered native title claimants
in relation to the land or waters covered by the non-exclusive agricultural
lease or non-exclusive pastoral lease that the act, or acts of that class, are
to be done in relation to the particular land or waters; and
(ii) has given them an opportunity to comment on the act or class of
acts.
Note: For the renewal, re-grant, re-making or extension of
certain acts covered by this section, see Subdivision I.
Validation of act
(2) The future act is valid.
Non-extinguishment principle
(3) The non-extinguishment principle applies to the act.
Compensation
(4) The native title holders concerned are entitled to compensation for
the act in accordance with Division 5.
Who pays compensation
(5) The compensation is payable by:
(a) if the act is attributable to the Commonwealth—the Crown in
right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in
right of the State or Territory.
Legislative acts
(1) This section applies to a future act consisting of the making,
amendment or repeal of legislation in relation to the management or regulation
of:
(a) surface and subterranean water; or
(b) living aquatic resources; or
(c) airspace.
In this subsection, water means water in all its
forms.
Leases, licences etc.
(2) This section also applies to a future act consisting of the grant of a
lease, licence, permit or authority under legislation that:
(a) is valid (including because of this Act); and
(b) relates to the management or regulation of:
(i) surface and subterranean water; or
(ii) living aquatic resources; or
(iii) airspace.
In this paragraph, water means water in all its
forms.
Validity of act
(3) The act is valid.
Non-extinguishment principle
(4) The non-extinguishment principle applies to the act.
Compensation
(5) The native title holders concerned are entitled to compensation for
the act in accordance with Division 5.
Who pays compensation
(6) The compensation is payable by:
(a) if the act is attributable to the Commonwealth—the Crown in
right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in
right of the State or Territory.
Notification
(7) Before an act covered by subsection (2) is done, the person proposing
to do the act must:
(a) notify, in the way determined in writing by the Commonwealth Minister,
any representative Aboriginal/Torres Strait Islander bodies, registered native
title bodies corporate and registered native title claimants in relation to the
land or waters that will be affected by the act, or acts of that class, that the
act, or acts of that class, are to be done; and
(b) give them an opportunity to comment on the act or class of
acts.
This Subdivision applies to a future act if the act is:
(a) a pre-existing right-based act (see section 24IB); or
(b) a permissible lease etc. renewal (see section 24IC).
A future act is a pre-existing right-based act if it takes
place:
(a) in exercise of a legally enforceable right created by any act done on
or before 23 December 1996 that is valid (including because of Division 2 or
2A); or
(b) in good faith in giving effect to, or otherwise because of, an offer,
commitment, arrangement or undertaking made or given in good faith on or before
23 December 1996, and of which there is written evidence created at or about the
time the offer, commitment, arrangement or undertaking was made.
(1) A future act is a permissible lease etc. renewal
if:
(a) it is:
(i) the renewal; or
(ii) the re-grant or re-making; or
(iii) the extension of the term;
of a lease, licence, permit or authority (the original lease
etc.) that is valid (including because of Division 2 or 2A);
and
(b) any of the following subparagraphs applies:
(i) the original lease etc. was granted on or before 23 December
1996;
(ii) the grant of the original lease etc. was a permissible lease etc.
renewal or a pre-existing right-based act;
(iii) the original lease etc. was created by an act covered by section
24GB, 24GD, 24GE or 24HA (which deal with certain acts in relation to primary
production activities or involving management or regulation of water and
airspace); and
(c) the future act does not:
(i) confer a right of exclusive possession over any of the land or waters
covered by the original lease etc.; or
(ii) otherwise create a larger proprietary interest in the land or waters
than was created by the original lease etc.; or
(iii) create a proprietary interest over any of the land or waters covered
by the original lease etc., where the original lease etc. created only a
non-proprietary interest; and
(d) if the original lease etc. contains, or is subject to, a reservation
or condition for the benefit of Aboriginal peoples or Torres Strait
Islanders—the renewed, re-granted, re-made or extended lease, licence,
permit or authority contains, or is subject to, the same reservation or
condition; and
(e) if the original lease etc. did not permit mining—the renewed,
re-granted, re-made or extended lease, licence, permit or authority does not
permit mining.
Replacement by 2 or more leases etc.
(2) If 2 or more leases, licences, permits or authorities are granted in
place of, respectively, a single lease, licence, permit or authority, then, for
the purposes of subsection (1), each of the 2 or more grants is taken to be a
renewal of the single lease, licence, permit or
authority.
Features that do not prevent a lease etc. from being a
renewal
(3) The features listed in subsection (4) do not prevent:
(a) an act from being the renewal, re-grant, re-making, or extension of
the term, of a lease, licence, permit or authority (the old
authority) for the purposes of subsection (1) (the renewed, re-granted,
re-made or extended lease, licence, permit or authority being the new
authority); or
(b) 2 or more leases, licences, permits or authorities (each of which is a
new authority) from being granted in place of a
single lease, licence, permit or authority (the old authority) for
the purposes of subsection (2).
Features
(4) The features are as follows:
(a) the new authority, or the new authorities together, cover a smaller
area than the old authority;
(b) the term of the new authority, or of any of the new authorities, is
longer than the term of the old authority;
(c) the new authority or any of the new authorities is a perpetual
lease;
(d) if the new authority or any of the new authorities is a non-exclusive
agricultural lease or a non-exclusive pastoral lease—the new authority
permits or requires the carrying on of an activity that the old authority did
not permit or require and that consists of:
(i) a primary production activity (see section 24GA); or
(ii) another activity, on the area covered by the new authority or of any
of the new authorities, that is associated with or incidental to a primary
production activity, provided that, when the other activity is being carried on,
the use of the majority of the area covered by the new authority, or the new
authorities together, will be for primary production activities.
(1) If this Subdivision applies to a future act:
(a) the act is valid; and
(b) if the act consists of the grant of a freehold estate, or the
conferral of a right of exclusive possession, over particular land or
waters—the act extinguishes any native title in relation to the land or
waters; and
Note: The only acts to which this paragraph applies are
certain acts covered by section 24IB.
(c) in any other case—the non-extinguishment principle applies to
the act; and
(d) in any case—the native title holders are entitled to
compensation for the act in accordance with Division 5.
Who pays compensation
(2) The compensation is payable by:
(a) if the act is attributable to the Commonwealth—the Crown in
right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in
right of the State or Territory.
Notification
(3) If paragraph 24IB(b) applied in relation to the future act, then,
before the act is done, the person proposing to do the act must:
(a) notify, in the way determined in writing by the Commonwealth Minister,
any representative Aboriginal/Torres Strait Islander bodies, registered native
title bodies corporate and registered native title claimants in relation to the
land or waters that will be affected by the act that the act, or acts of that
class, are to be done in relation to the land or waters concerned; and
(b) give them an opportunity to comment on the act or class of
acts.
Reservations etc.
(1) This Subdivision applies to a future act (the later
act) if:
(a) an act (the earlier act) took place before the later act
and on or before 23 December 1996; and
(b) the earlier act was valid (including because of Division 2 or 2A);
and
(c) the earlier act:
(i) was done by the Crown in right of the Commonwealth, a State or
Territory; or
(ii) consisted of the making, amendment or repeal of legislation by the
Commonwealth, a State or Territory: and
(d) the earlier act contained, made or conferred a reservation,
proclamation, dedication, condition, permission or authority (the
reservation) under which the whole or part of any land or waters
was to be used for a particular purpose; and
(e) the later act is done in good faith:
(i) under or in accordance with the reservation; or
(ii) in the area covered by the reservation, so long as the act’s
impact on native title is no greater than the impact that any act that could
have been done under or in accordance with the reservation would have
had.
Example 1: A future act consisting of the creation of a
national park management plan might be covered by subparagraph (e)(i), if the
land concerned was reserved for the establishment of the national park before 23
December 1996.
Example 2: A future act consisting of the grant of a
forestry licence might be covered by that subparagraph, if the grant is done
under or in accordance with a dedication for forestry purposes made before 23
December 1996.
Example 3: Subparagraph (e)(ii) might apply if particular
land was reserved as a hospital site before 23 December 1996, and instead a
school is later built on the land.
Leases
(2) This Subdivision also applies to a future act (the later
act) if:
(a) an act (the earlier act) took place before the later act
and on or before 23 December 1996; and
(b) the earlier act was valid (including because of Division 2 or 2A);
and
(c) the earlier act was done by the Crown in right of the Commonwealth, a
State or a Territory; and
(d) the earlier act consisted of the grant of a lease to a statutory
authority of the Commonwealth, the State or the Territory, where:
(i) under the lease, the whole or part of any land or waters covered by
the lease was to be used for a particular purpose; or
(ii) there is written evidence, created at any time on or before 23
December 1996 by the Commonwealth, the State or the Territory, that the whole or
part of any land or waters covered by the lease was to be used for a particular
purpose; and
(e) the later act is done in good faith and consists of the use, by the
statutory authority or any person, of the land or waters for the particular
purpose.
Validation of act
(1) If this Subdivision applies to a future act, the act is
valid.
Extinguishment consequences—public works
(2) If the act consists of the construction or establishment of a public
work:
(a) the act extinguishes any native title in relation to the land or
waters on which the public work (on completion of its construction or
establishment) is situated; and
(b) the extinguishment is taken to have happened when the construction or
establishment of the public work began.
Extinguishment consequences—not public works
(3) If the act does not consist of the construction or establishment of a
public work, the non-extinguishment principle applies to the act.
Compensation
(4) The native title holders are entitled to compensation for the act in
accordance with Division 5.
Who pays compensation
(5) The compensation is payable by:
(a) if the act is attributable to the Commonwealth—the Crown in
right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in
right of the State or Territory.
Notification
(6) If the act consists of the construction or establishment of a public
work, then, before the act is done, the person proposing to do the act
must:
(a) notify, in the way determined in writing by the Commonwealth Minister,
any representative Aboriginal/Torres Strait Islander bodies, registered native
title bodies corporate and registered native title claimants in relation to the
land or waters covered by the reservation or lease that the act, or acts of that
class, are to be done in relation to the land or waters; and
(b) give them an opportunity to comment on the act or class of
acts.
Coverage of Subdivision
(1) This Subdivision applies to a future act if:
(a) it relates, to any extent, to an onshore place; and
(b) it either:
(i) permits or requires the construction, operation, use, maintenance or
repair, by or on behalf of any person, of any of the things listed in subsection
(2) that is to be operated, or is operated, for the general public; or
(ii) consists of the construction, operation, use, maintenance or repair,
by or on behalf of the Crown, or a local government body or other statutory
authority of the Crown, in any of its capacities, of any of the things listed in
subsection (2) that is to be operated, or is operated, for the general public;
and
(c) it does not prevent native title holders in relation to land or waters
on which the thing is located or to be located from having reasonable access to
such land or waters in the vicinity of the thing, except:
(i) while the thing is being constructed; or
(ii) for reasons of health and safety; and
(d) a law of the Commonwealth, a State or a Territory makes provision in
relation to the preservation or protection of areas, or sites, that may
be:
(i) in the area in which the act is done; and
(ii) of particular significance to Aboriginal peoples or Torres Strait
Islanders in accordance with their traditions.
Facilities etc.
(2) For the purposes of paragraph (1)(b), the things are as
follows:
(a) a road, railway, bridge or other transport facility (other than an
airport or port);
(b) a jetty or wharf;
(c) a navigation marker or other navigational facility;
(d) an electricity transmission or distribution facility;
(e) lighting of streets or other public places;
(f) a gas transmission or distribution facility;
(g) a well, or a bore, for obtaining water;
(h) a pipeline or other water supply or reticulation facility;
(i) a drainage facility, or a levee or other device for management of
water flows;
(j) an irrigation channel or other irrigation facility;
(k) a sewerage facility, other than a treatment facility;
(l) a cable, antenna, tower or other communication facility;
(m) any other thing that is similar to any one or more of the things
mentioned in the paragraphs above.
Validation of act
(3) If this Subdivision applies to a future act, the act is
valid.
Non-extinguishment principle
(4) The non-extinguishment principle applies to the act.
Compensation
(5) If any native title holders would be entitled to compensation under
subsection 17(2) for the act on the assumption that it was a past act referred
to in that section, the native title holders are entitled to compensation for
the act in accordance with Division 5.
Who pays compensation
(6) The native title holders may recover the compensation from:
(a) if the act is attributable to the Commonwealth:
(i) if a law of the Commonwealth provides that a person other than the
Crown in right of the Commonwealth is liable to pay the compensation—that
person; or
(ii) if not—the Crown in right of the Commonwealth; or
(b) if the act is attributable to a State or Territory:
(i) if a law of the State or Territory provides that a person other than
the Crown in any capacity is liable to pay the compensation—that person;
or
(ii) if not—the Crown in right of the State or Territory.
Procedural rights
(7) The native title holders have the same procedural rights as they would
have in relation to the act on the assumption that they instead held:
(a) to the extent (if any) that the land concerned is covered by a
non-exclusive agricultural lease (see section 247B) or a non-exclusive pastoral
lease (see section 248B)—a lease of that kind; or
(b) to the extent (if any) that paragraph (a) does not
apply—ordinary title;
covering any land concerned or covering the land adjoining, or surrounding,
any waters concerned.
Satisfying the right to be notified
(8) If:
(a) because of subsection (7) or any law of the Commonwealth, a State or a
Territory, the native title holders have a procedural right that requires
another person to notify them of the act; and
(b) there has been no approved determination of the native
title;
then one way in which the person may give the required notification is by
notifying, in the way determined in writing by the Commonwealth Minister for the
purposes of this subsection the following that the act is to take
place:
(c) any representative Aboriginal/Torres Islander bodies for the area
concerned;
(d) any registered native title claimants in relation to land or waters in
the area concerned.
(1) This Subdivision applies to a future act in relation to particular
land or waters if:
(a) the act takes place before, and does not continue after, an approved
determination of native title is made in relation to the land or waters, if the
determination is that native title exists; and
(b) the act does not consist of, authorise or otherwise involve:
(i) the grant of a freehold estate in any of the land or waters;
or
(ii) the grant of a lease over any of the land or waters; or
(iii) the conferral of a right of exclusive possession over any of the
land or waters; or
(iv) the excavation or clearing of any of the land or waters; or
(v) mining (other than fossicking by using hand-held implements);
or
(vi) the construction or placing on the land, or in the waters, of any
building, structure, or other thing (other than fencing or a gate), that is a
fixture; or
(vii) the disposal or storing, on the land or in the waters, of any
garbage or any poisonous, toxic or hazardous substance.
Exclusion for public health or safety etc.
(2) Subparagraph (1)(b)(iv) does not apply to:
(a) excavation or clearing that is reasonably necessary for the protection
of public health or public safety; or
(b) tree lopping, clearing of noxious or introduced animal or plant
species, foreshore reclamation, regeneration or environmental assessment or
protection activities.
Validation of act
(3) If this Subdivision applies to a future act, the act is
valid.
Non-extinguishment
(4) The non-extinguishment principle applies to the act.
This Subdivision applies to a future act if it is the making, amendment
or repeal of legislation and:
(a) the act applies in the same way to the native title holders concerned
as it would if they instead held ordinary title to the land (or to the land
adjoining, or surrounding, the waters) affected; or
(b) the effect of the act on the native title in relation to the land or
the waters is not such as to cause the native title holders to be in a more
disadvantageous position at law than they would be if they instead held ordinary
title to the land (or to the land adjoining, or surrounding, the
waters).
Example 1: An example of a future act covered by paragraph
(a) is the making of legislation that permits mining on land in respect of which
there is either native title or ordinary title.
Example 2: An example of a future act covered by paragraph
(b) is the amendment of legislation that permits mining on land that is subject
to ordinary title so that it will also permit mining, on the same terms, on land
in relation to which native title exists.
Freehold test
(1) This Subdivision applies to a future act if:
(a) it is an act other than the making, amendment or repeal of
legislation; and
(b) either:
(i) the act could be done in relation to the land concerned if the native
title holders concerned instead held ordinary title to it; or
(ii) the act could be done in relation to the waters concerned if the
native title holders concerned held ordinary title to the land adjoining, or
surrounding, the waters.
Example: An example of a future act covered by this
subsection is the grant of a mining lease over land in relation to which there
is native title when a mining lease would also be able to be granted over the
land if the native title holders instead held ordinary title to
it.
Opal or gem mining
(2) This Subdivision also applies to a future act if:
(a) it is an act other than the making, amendment or repeal of
legislation; and
(b) it is not covered by subsection (1); and
(c) it consists of the creation or variation of a right to mine for opals
or gems.
However, this Subdivision only applies to a future act to the extent that
it relates to an onshore place. A reference to an act to which this Subdivision
applies is to be read as referring to the act to that extent only.
Validation of act
(1) If this Subdivision applies to a future act, then, subject to
Subdivision P (which deals with the right to negotiate), the act is
valid.
Extinguishment of native title by compulsory acquisition
(2) If:
(a) the act is the compulsory acquisition of the whole or part of any
native title rights and interests under a law of the Commonwealth, a State or a
Territory that permits both:
(i) the compulsory acquisition by the Commonwealth, the State or the
Territory of native title rights and interests; and
(ii) the compulsory acquisition by the Commonwealth, the State or the
Territory of non-native title rights and interests in relation to land or
waters; and
(b) the whole, or the equivalent part, of all non-native title rights and
interests, in relation to the land or waters to which the native title rights
and interests that are compulsorily acquired relate, is also acquired (whether
compulsorily or otherwise) in connection with the compulsory acquisition of the
native title rights and interests; and
(ba) the practices and procedures adopted in acquiring the native title
rights and interests are not such as to cause the native title holders any
greater disadvantage than is caused to the holders of non-native title rights
and interests when their rights and interests are acquired;
then:
(c) nothing in this Act prevents the compulsory acquisition from
extinguishing the whole or the part of the native title rights and interests;
and
(d) if compensation on just terms is provided under a law of the
Commonwealth, a State or a Territory to the native title holders for the
compulsory acquisition, and they request that the whole or part of any such
compensation should be in a form other than money, the person providing the
compensation must:
(i) consider the request; and
(ii) negotiate in good faith in relation to the request; and
(e) if compensation on just terms is not provided under a law of the
Commonwealth, a State or Territory to the native title holders for the
compulsory acquisition, they are entitled to compensation for the acquisition in
accordance with Division 5.
Note: Subdivision P (which deals with the right to
negotiate) applies to some acquisitions.
Non-extinguishment and compensation
(3) In the case of any other future act to which this Subdivision
applies:
(a) the non-extinguishment principle applies to the act; and
(b) if the following conditions are satisfied:
(i) the similar compensable interest test is satisfied in relation to the
act; and
(ii) the law mentioned in section 240 (which defines similar
compensable interest test) does not provide for compensation to the
native title holders for the act;
the native title holders are entitled to compensation for the act in
accordance with Division 5.
Who pays compensation
(4) The native title holders may recover the compensation from:
(a) if the act is attributable to the Commonwealth:
(i) if a law of the Commonwealth provides that a person other than the
Crown in right of the Commonwealth is liable to pay the compensation—that
person; or
(ii) if not—the Crown in right of the Commonwealth; or
(b) if the act is attributable to a State or Territory:
(i) if a law of the State or Territory provides that a person other than
the Crown in any capacity is liable to pay the compensation—that person;
or
(ii) if not—the Crown in right of the State or Territory.
Exception for certain lessees
(5) If:
(a) the act is the compulsory acquisition of the whole or part of any
native title rights and interests; and
(b) the land or waters concerned are to any extent the subject of a
non-exclusive agricultural lease or a non-exclusive pastoral lease;
then, despite subsection (4):
(c) the native title holders are not entitled to recover the compensation
from the lessee; and
(d) if the act is attributable to the Commonwealth—the native title
holders may recover the compensation from the Crown in right of the
Commonwealth; and
(e) if the act is attributable to a State or Territory—the native
title holders may recover the compensation from the Crown in right of the State
or Territory.
Procedural rights
(6) In the case of any future act to which this Subdivision applies, other
than:
(a) an act to which Subdivision P (which deals with the right to
negotiate) applies; or
(b) an act determined under section 26A to be an approved exploration etc.
act; or
(c) an act determined under section 26B to be an approved gold or tin
mining act; or
(d) an act covered by section 26C (which deals with opal or gem
mining);
the native title holders have the same procedural rights as they would have
in relation to the act on the assumption that they instead held ordinary title
to any land concerned and to the land adjoining, or surrounding, any waters
concerned.
Satisfying the right to be notified
(7) If:
(a) because of subsection (6) or any law of the Commonwealth, a State or a
Territory, the native title holders have a procedural right that requires
another person to notify them of the act; and
(b) there has been no approved determination of the native
title;
then one way in which the person may give the required notification is by
notifying, in the way determined in writing by the Commonwealth Minister for the
purposes of this subsection, the following that the act is to take
place:
(c) any representative Aboriginal/Torres Strait Islander bodies for the
area concerned;
(d) any registered native title claimants in relation to land or waters in
the area concerned.
Coverage of Subdivision
(1) This Subdivision applies to a future act to the extent that it relates
to an offshore place. A reference to a future act to which this Subdivision
applies is to be read as referring to the act to that extent only.
Validation of act
(2) If this Subdivision applies to a future act, the act is
valid.
Extinguishment of native title by compulsory acquisition
(3) If:
(a) the act is the compulsory acquisition of the whole or part of any
native title rights and interests under a law of the Commonwealth, a State or a
Territory that permits both:
(i) the compulsory acquisition by the Commonwealth, the State or the
Territory of native title rights and interests; and
(ii) the compulsory acquisition by the Commonwealth, the State or the
Territory of non-native title rights and interests in relation to land or
waters; and
(b) the whole, or the equivalent part, of all non-native title rights and
interests, in relation to the land or waters to which the native title rights
and interests that are compulsorily acquired relate, is also acquired (whether
compulsorily or otherwise) in connection with the compulsory acquisition of the
native title rights and interests; and
(c) the practices and procedures adopted in acquiring the native title
rights and interests are not such as to cause the native title holders any
greater disadvantage than is caused to the holders of non-native title rights
and interests when their rights and interests are acquired;
then nothing in this Act prevents the acquisition from extinguishing the
whole or the part of the native title rights and interests.
Non-extinguishment principle
(4) In the case of any other future act to which this Subdivision applies,
the non-extinguishment principle applies to the act.
Compensation where compulsory acquisition
(5) If this Subdivision applies to a future act consisting of the
compulsory acquisition of the whole or part of any native title rights and
interests:
(a) if compensation on just terms is provided under a law of the
Commonwealth, a State or a Territory to the native title holders for the
acquisition, and they request that the whole or part of any such compensation
should be in a form other than money, the person providing the compensation
must:
(i) consider the request; and
(ii) negotiate in good faith in relation to the request; and
(b) if compensation on just terms is not provided under a law of the
Commonwealth, a State or Territory to the native title holders for the
acquisition, they are entitled to compensation for the acquisition in accordance
with Division 5.
Compensation for other acts
(6) In the case of any other future act to which this Subdivision applies,
the native title holders are entitled to compensation for the act in accordance
with Division 5.
Who pays compensation
(7) The native title holders may recover the compensation from:
(a) if the act is attributable to the Commonwealth:
(i) if a law of the Commonwealth provides that a person other than the
Crown in right of the Commonwealth is liable to pay the compensation—that
person; or
(ii) if not—the Crown in right of the Commonwealth; or
(b) if the act is attributable to a State or Territory:
(i) if a law of the State or Territory provides that a person other than
the Crown in any capacity is liable to pay the compensation—that person;
or
(ii) if not—the Crown in right of the State or Territory.
Procedural rights
(8) In the case of any future act to which this Subdivision applies, the
native title holders have the same procedural rights as they would have in
relation to the act on the assumption that they instead held any corresponding
rights and interests in relation to the offshore place that are not native title
rights and interests.
Satisfying the right to be notified
(9) If:
(a) because of subsection (8) or any law of the Commonwealth, a State or a
Territory, the native title holders have a procedural right that requires
another person to notify them of the act; and
(b) there has been no approved determination of the native
title;
then one way in which the person may give the required notification is by
notifying, in the way determined in writing by the Commonwealth Minister for the
purposes of this subsection, the following that the act is to take
place:
(c) any representative Aboriginal/Torres Strait Islander bodies for the
area concerned;
(d) any registered native title claimants in relation to land or waters in
the area concerned.
Unless a provision of this Act provides otherwise, a future act is
invalid to the extent that it affects native title.
(1) In summary, this Subdivision applies to a future act to which
Subdivision M (which deals with acts that pass the freehold test) applies that
is done by the Commonwealth, a State or a Territory, and is of any of the
following kinds:
(a) certain conferrals of mining rights;
(b) certain compulsory acquisitions of native title rights and
interests;
(c) other acts approved by the Commonwealth Minister.
(2) Before the future act is done, the parties must negotiate with a view
to reaching an agreement about the act.
(3) If they do not reach agreement, an arbitral body, or a Minister, will
make a determination about the act instead.
(4) If the procedures in this Subdivision are not complied with, the act
will be invalid to the extent that it affects native title.
(5) States and Territories may make their own laws as alternatives to this
Subdivision. The Commonwealth Minister must be satisfied as to certain matters
before such laws can take effect.
Note: The fact that action is being taken to comply with
this Subdivision does not imply that action under another law, such as
processing requests or applications in respect of the act, cannot be taken at
the same time.
Subdivision applies to certain future acts
(1) This Subdivision applies to a future act if:
(a) Subdivision M (which deals with acts that pass the freehold test)
applies to the act; and
Note: That Subdivision only applies to an act to the extent
that the act relates to an onshore place: see section 24MC.
(b) the act is done by the Commonwealth, a State or a Territory (the
Government party); and
(c) subject to this section, the act is:
(i) the creation of a right to mine, whether by the grant of a mining
lease or otherwise; or
(ii) the variation of such a right, to extend the area to which it
relates; or
(iii) the compulsory acquisition of native title rights and interests,
if:
(A) the purpose of the acquisition is to confer rights or interests in
relation to the land or waters concerned on persons other than the Government
party; and
(B) the conferral is not for the purpose of providing an infrastructure
facility (see section 253); or
(iv) any other act approved by the Commonwealth Minister, in writing, for
the purposes of this paragraph, where, if the act is attributable to a State or
Territory, the Commonwealth Minister consulted the State Minister or the
Territory Minister about the approval before giving it.
Exclusions
(2) This Subdivision does not apply to the extent that the act
is:
(a) an act covered by section 24EB (which deals with the effects of
indigenous land use agreements) or by any of the sections listed in paragraphs
24AA(4)(a) to (i); or
(b) an act determined in writing by the Commonwealth Minister to be an
approved exploration etc. act (see section 26A); or
(c) an act determined in writing by the Commonwealth Minister to be an
approved gold or tin mining act (see section 26B); or
(d) an act excluded by section 26C (which deals with opal or gem mining)
from the coverage of this Subdivision; or
(e) an act excluded by section 26D (which deals with renewals of valid
mining leases etc.) from the coverage of this Subdivision; or
(f) an act relating solely to land or waters wholly within a town or city
(see section 251C).
Note: Under sections 43 and 43A, a State or Territory may,
in certain circumstances, make alternative provisions to the regime provided for
by this Subdivision.
Sea and intertidal zone excluded
(3) This Subdivision only applies to the act to the extent that the act
relates to a place that is on the landward side of the mean high-water mark of
the sea. A reference to an act to which this Subdivision applies is to be read
as referring to the act to that extent only.
(1) If the conditions in this section are satisfied, the Commonwealth
Minister may determine in writing that an act, or that each act included in a
class of acts, is an approved exploration etc. act.
First condition
(2) The first condition is that the act, or acts included in the class,
consist of the creation or variation of a right to mine, where the right as so
created or varied is a right to explore, a right to prospect, a right to fossick
or a right to quarry.
Second condition
(3) The second condition is that the Minister considers that the act or
acts are unlikely to have a significant impact on the particular land or waters
concerned.
Drilling and second condition
(4) If the act or acts authorise drilling, this does not mean that the
second condition cannot be satisfied.
Third condition
(5) The third condition is that the Minister has:
(a) notified any relevant representative Aboriginal/Torres Strait Islander
bodies, and notified the public in the determined way, of the proposed
determination; and
(b) invited submissions from them about the proposed determination;
and
(c) considered any submissions made in response to the
invitation.
Fourth condition
(6) The fourth condition is that the Minister is satisfied that, if the
determination is made:
(a) all:
(i) registered native title bodies corporate; and
(ii) registered native title claimants; and
(iii) representative Aboriginal/Torres Strait Islander bodies;
in relation to any of the land or waters that will be affected by the act
or acts will have a right to be notified that the act or each act included in
the class is to be done; and
(b) any such persons or bodies will have a right to be heard by an
independent person or body about:
(i) whether the act is to be done; and
(ii) any matter relating to the doing of the act;
unless no other person would have such a right, assuming the person had
an interest of any kind in relation to the land or waters; and
(c) either:
(i) the person, or one of the persons, who will do any thing authorised by
the act will have a legal obligation to consult appropriately any person or body
covered by subparagraph (a)(i) or (ii), unless the person or body indicates that
the person or body does not wish to be so consulted; or
(ii) procedures will be in place under which such consultation will be
required;
for the purpose of minimising the impact of the act on the exercise of
native title rights and interests in relation to land or waters that will be
affected by the act, and in particular about the matters set out in subsection
(7).
Matters relevant to fourth condition
(7) The matters are:
(a) the identification and protection of any area or site, on the land or
waters to which the native title rights and interests relate, of particular
significance to the persons holding the native title in accordance with their
traditional laws and customs; and
(b) any access to the land or waters to which the native title rights and
interests relate by:
(i) those persons; or
(ii) any person who will do any thing that is authorised because of,
results from, or otherwise relates to, the doing of the act; and
(c) the way in which any other thing that:
(i) is authorised because of, results from, or otherwise relates to, the
doing of the act; and
(ii) affects the native title rights and interests;
is to be done.
Revocation of determination
(8) If, at any time after making the determination, the Commonwealth
Minister considers that circumstances have changed to the extent that the
conditions in this section would not be satisfied if he or she were making the
determination at that time, the Commonwealth Minister must:
(a) if the act or acts are done by a State or Territory:
(i) advise the State Minister or the Territory Minister concerned in
writing of the fact; and
(ii) if at the end of 90 days, or such longer period as the Commonwealth
Minister allows, after doing so, the conditions in this section would still not
be satisfied—in writing, revoke the determination; or
(b) if the act or acts are done by the Commonwealth—in writing,
revoke the determination.
(1) If the conditions in this section are satisfied, the Commonwealth
Minister may determine in writing that each act included in a class of acts done
by a State or Territory is an approved gold or tin mining
act.
First condition
(2) The first condition is that the relevant State Minister or Territory
Minister has requested the Commonwealth Minister in writing to make such a
determination in relation to acts in the class.
Second condition
(3) The second condition is that acts included in the class consist of the
creation or variation of rights to mine, where the rights as so created or
varied are rights to mine gold, or tin, in surface alluvium.
Third condition
(4) The third condition is that, by or under a law of the State or
Territory, the only way in which the gold or tin may be recovered from the
material that is mined is by a washing or an aeration process.
Fourth condition
(5) The fourth condition is that, by or under a law of the State or
Territory, the persons given the rights to mine will be required to rehabilitate
any area of land or waters, in which the mining takes place and in relation to
which native title rights and interests may exist, for the purpose of minimising
the impact of the mining on the land or waters.
Fifth condition
(6) The fifth condition is that the Commonwealth Minister has:
(a) notified any relevant representative Aboriginal/Torres Strait Islander
bodies, and notified the public in the determined way, of the proposed
determination; and
(b) invited submissions from them about the proposed determination;
and
(c) considered any submissions made in response to the
invitation.
Sixth condition
(7) The sixth condition is that the Commonwealth Minister is satisfied
that, if the determination is made:
(a) all:
(i) registered native title bodies corporate; and
(ii) registered native title claimants; and
(iii) representative Aboriginal/Torres Strait Islander bodies;
in relation to any land or waters that will be affected by the acts will
have a right to be notified that each act included in the class is to be done;
and
(b) any such persons or bodies will have a right to be heard by an
independent person or body about:
(i) whether the act is to be done; and
(ii) any matter relating to the doing of the act;
unless no other person would have such a right, assuming the person had
an interest of any kind in relation to the land or waters; and
(c) either:
(i) the person, or one of the persons, who will do any thing authorised by
the act will have a legal obligation to consult appropriately any person or body
covered by subparagraph (a)(i) or (ii), unless the person or body indicates that
the person or body does not wish to be so consulted; or
(ii) procedures will be in place under which such consultation will be
required;
for the purpose of minimising the impact of the act on land or waters, in
relation to which native title rights and interests may exist, that will be
affected by the act, and in particular about the matters set out in subsection
(8).
Matters relevant to sixth condition
(8) The matters are:
(a) the identification and protection of any area or site, on the land or
waters to which the native title rights and interests relate, of particular
significance to the persons holding the native title in accordance with their
traditional laws and customs; and
(b) any access to the land or waters to which the native title rights and
interests relate by:
(i) those persons; or
(ii) any person who will do any thing that is authorised because of,
results from, or otherwise relates to, the doing of the act; and
(c) the way in which any rehabilitation or other thing that is authorised
because of, results from, or otherwise relates to, the doing of the act is to be
done.
Revocation of determination
(9) If, at any time after making the determination, the Commonwealth
Minister considers that circumstances have changed to the extent that the
conditions in this section would not be satisfied if he or she were making the
determination at that time, the Commonwealth Minister must:
(a) advise the State Minister or the Territory Minister concerned in
writing of the fact; and
(b) if at the end of 90 days, or such longer period as the Commonwealth
Minister allows, after doing so, the conditions in this section would still not
be satisfied—in writing, revoke the determination.
Mining other than exploring or prospecting
(1) This Subdivision does not apply to an act consisting of the creation
or variation of a right to mine, if the right, as so created or
varied:
(a) is not a right to explore or prospect; and
(b) relates solely to land or waters wholly within an approved opal or gem
mining area (see subsection (2)); and
(c) allows:
(i) mining (other than puddling) only for opals or gems; or
(ii) mining consisting of puddling in respect of opals or gems;
and
(d) allows that mining only in an area no larger than 5 hectares;
and
(e) is conferred for a period of no more than 5 years; and
(f) if the right is able to be renewed one or more times—is able to
be renewed for no more than 5 years each time.
Exploring or prospecting
(1A) This Subdivision also does not apply to an act consisting of the
creation or variation of a right to mine that is a right to explore or prospect,
if the right, as so created or varied:
(a) relates solely to land or waters wholly within an approved opal or gem
mining area (see subsection (2)); and
(b) allows exploration or prospecting only for opals or gems;
and
(c) allows that exploration or prospecting in an area no larger than 500
hectares; and
(d) is conferred for a period of no more than 5 years; and
(e) if the right is able to be renewed one or more times—is able to
be renewed for no more than 5 years each time.
Approved opal or gem mining area
(2) If the conditions in subsections (3) to (5A) are satisfied, the
Commonwealth Minister may determine in writing that a specified area of land or
waters within a particular State or Territory is an approved opal or gem
mining area for the purposes of this section.
First condition
(3) The first condition is that the relevant State Minister or Territory
Minister has requested the Commonwealth Minister in writing to make such a
determination in relation to the area.
Second condition
(4) The second condition is that the Commonwealth Minister is satisfied,
having regard to:
(a) any mining rights conferred in the past in the area; and
(b) any other relevant matter;
that in the future at least some rights will be conferred to mine in the
area that will:
(c) allow:
(i) mining for opals or gems (other than mining consisting of exploring,
prospecting or puddling) only in an area no larger than 5 hectares; or
(ii) mining consisting of puddling in respect of opals or gems only in an
area no larger than 5 hectares; or
(iii) mining consisting of exploration or prospecting for opals or gems in
an area no larger than 500 hectares; and
(d) be conferred for a period of no more than 5 years; and
(e) if the rights are renewed one or more times—be renewed for a
period of no more than 5 years each time.
Third condition
(5) The third condition is that, before making the request, the State
Minister or Territory Minister:
(a) notified the public, and notified any registered native title bodies
corporate, registered native title claimants and representative
Aboriginal/Torres Strait Islander bodies in relation to any of the area, that he
or she was intending to make the request in relation to the area; and
(b) invited submissions about the request, and in particular about the
area covered by the request and about processes for the identification and
protection of any area or site within that area of particular significance to
native title holders in accordance with their traditional laws and customs;
and
(c) considered any such submissions that were made.
Fourth condition
(5A) The fourth condition is that the Commonwealth Minister is satisfied
that mining for opals or gems is currently being carried on in the whole or a
substantial part of the area.
Revocation of determination
(6) If, at any time after making the determination, the Commonwealth
Minister considers that circumstances have changed to the extent that the
conditions in subsections (3) to (5A) would not be satisfied if he or she were
making the determination at that time, the Commonwealth Minister must:
(a) advise the State Minister or the Territory Minister concerned in
writing of the fact; and
(b) if at the end of 90 days, or such longer period as the Commonwealth
Minister allows, after doing so, the conditions in this section would still not
be satisfied—in writing, revoke the determination.
Renewal of valid mining lease etc.
(1) This Subdivision does not apply to an act consisting of the creation
of a right to mine if:
(a) the creation of the right is done by:
(i) the renewal; or
(ii) the re-grant or re-making; or
(iii) the extension of the term;
of an earlier right to mine; and
(b) the earlier right:
(i) was created on or before 23 December 1996 by an act that is valid
(including because of Division 2 or 2A); or
(ii) was created by an act to which this Subdivision applied that was not
invalid to any extent under section 28; and
(c) the area to which the earlier right relates is not extended.
Act contemplated by exploration or prospecting agreement
etc.
(2) This Subdivision does not apply to an act (the later
act) consisting of the creation of a right to mine if:
(a) before the later act takes place, an act (the earlier
act) consisting of the creation of a right to explore or prospect took
place; and
(b) this Subdivision applied to the earlier act and, because paragraph
28(1)(f), (g) or (h) applied to the act, it was not invalid to any extent under
section 28; and
(c) the agreement mentioned in paragraph 28(1)(f), or conditions in the
determination mentioned in paragraph 28(1)(g) or (h), provided that, if the
later act were done, certain conditions would be complied with by parties other
than native title parties (whether before or after the act was done);
and
(d) any such conditions that were required to be complied with before the
later act is done are complied with before the later act is done.
Arbitral bodies: recognised State/Territory bodies
(1) If a law of a State or Territory for which there is a recognised
State/Territory body so allows, the body is the arbitral body
under this Subdivision in relation to acts of the State or Territory to which
this Subdivision applies, other than acts in relation to:
(a) a Commonwealth place (within the meaning of the Commonwealth Places
(Application of Laws) Act 1970); or
(b) any place outside the jurisdictional limits of the State or
Territory.
Arbitral bodies: NNTT
(2) If:
(a) a future act is done by the Commonwealth; or
(b) a future act is done by a State or Territory and there is no arbitral
body under subsection (1) in respect of the act;
the National Native Title Tribunal is the arbitral body in
respect of the act.
Arbitral body not to include holders of judicial offices
(3) If the arbitral body in respect of the act is the NNTT, for the
purposes of performing the functions and exercising the powers of the arbitral
body in respect of the act, the NNTT must not be constituted by:
(a) a member who is the holder of a judicial office; or
(b) members one or more of whom are the holders of judicial
offices.
Commonwealth Minister
(1) If the arbitral body in respect of the act is the NNTT, for the
purposes of this Subdivision the relevant Minister in respect of
the act is the Commonwealth Minister.
State or Territory Minister
(2) If the arbitral body in respect of the act is a recognised
State/Territory body, for the purposes of this Subdivision the relevant
Minister in respect of the act is the State Minister or the Territory
Minister, as the case requires.
Conditions of the kind mentioned in paragraph 31(1)(b), 36C(4)(c),
38(1)(c) or 42(3)(b) may provide for procedures to be followed by the
negotiation parties (see section 30A) for dealing with issues that may arise as
a result of, or otherwise in relation to, the doing of the act.
(1) Subject to this Act, an act to which this Subdivision applies is
invalid to the extent that it affects native title unless, before it is done,
the requirements of one of the following paragraphs are satisfied:
(a) by the end of the period of 4 months after the notification day for
the act (see subsection 29(4)), there is no native title party in relation to
any of the land or waters that will be affected by the act;
(b) after the end of that period, but immediately before the act is done,
there is no native title party in relation to any of the land or waters that
will be affected by the act;
(c) subsection 32(2) (which applies if no objection is made after the
giving of a notice that the act attracts the expedited procedure) allows the act
to be done;
(d) a determination is made under subsection 32(4) that the act is an act
attracting the expedited procedure;
(e) native title parties have lodged one or more objections in relation to
the act under subsection 32(3), but all such objections are withdrawn under
subsection 32(6);
(f) an agreement of the kind mentioned in paragraph 31(1)(b) is
made;
(g) a determination is made under section 34A, 36A or 38 that the act may
be done, or may be done subject to conditions being complied with;
(h) a determination that the act must not be done is declared to be
overruled in accordance with section 42.
Breach of undertaking to trustee
(2) Even if, before the act is done, the requirements of one of paragraphs
(1)(c) to (h) are satisfied, the act is nevertheless invalid to the extent it
affects native title if:
(a) a trustee who is holding an amount in trust under this Subdivision in
respect of the act until it is dealt with in accordance with section 52 is
informed by the Government party as mentioned in paragraph 52(1)(b) that it no
longer proposes to do the act; and
(b) the Government party does the act without again complying with the
requirements of this Subdivision.
Notice in accordance with section
(1) Before the act is done, the Government party must give notice of the
act in accordance with this section.
Persons to be given notice
(2) The Government party must give notice to:
(a) any registered native title body corporate (a native title
party) in relation to any of the land or waters that will be affected by
the act; and
(b) unless there are one or more registered native title bodies corporate
in relation to all of the land or waters that will be affected by the
act:
(i) any registered native title claimant (also a native title
party); and
Note: Registered native title claimants are persons whose
names appear on the Register of Native Title Claims as applicants in relation to
claims to hold native title: see the definition of registered native title
claimant in section 253.
(ii) any representative Aboriginal/Torres Strait Islander body;
in relation to any land or waters that will be affected by the act;
and
(c) if the doing of the act has been requested or applied for by a person
(for example, where it is the issue of a licence or the grant of a lease for
which the person has applied)—that person (a grantee party);
and
(d) the registrar or other proper officer of the arbitral body in relation
to the act.
Public notification
(3) Before the act is done, the Government party or the grantee party must
also notify the public in the determined way (see section 252) of the act,
unless there is a registered native title body corporate in relation to all of
the land or waters that will be affected by the act.
Notice to specify day and include prescribed documents
etc.
(4) The notice given under subsection (2) or (3) must:
(a) specify a day as the notification day for the act;
and
(b) contain a statement to the effect that, under section 30, persons have
until 3 months after the notification day to take certain steps to become native
title parties in relation to the notice; and
(c) be accompanied by any prescribed documents and include any prescribed
information.
Each notice to specify the same day
(5) Each such notice in relation to the act must specify the same day as
the notification day.
Which days may be specified
(6) That day must be a day by which, in the Government party’s
opinion, it is reasonable to assume that all notices under subsections (2) and
(3) in relation to the act will have been received by, or will otherwise have
come to the attention of, the persons who must be notified under those
subsections.
Acts attracting the expedited procedure
(7) The notices under this section may include a statement that the
Government party considers the act is an act attracting the expedited
procedure.
Multiple acts
(8) Notice of 2 or more acts to which this Subdivision applies may be
given in the same notice.
Project acts
(9) If such a notice is given and:
(a) the notice identifies a project to be carried on in a specified area;
and
(b) the 2 or more acts constitute or form part of the project (whether or
not the notice separately specifies the area that each act will affect);
and
(c) the arbitral body is the same for each of the acts; and
(d) the notice states that the acts are project acts for the purposes of
this Subdivision;
the acts are project acts for the purposes of this
Subdivision.
Note: Section 42A provides that this Subdivision applies to
project acts in a modified way.
Project acts not to include statement about expedited
procedure
(10) However, the notice must not include a statement that the Government
party considers any of the project acts is an act attracting the expedited
procedure.
(1) Each of the following is also a native title
party:
(a) any person who, 4 months after the notification day (see subsection
29(4)), is a registered native title claimant in relation to any of the land or
waters that will be affected by the act, so long as:
(i) the application containing the claim was filed in the Federal Court,
or given to the recognised State/Territory body, before the end of 3 months
after the notification day; and
(ii) the claim related to any of the land or waters that will be affected
by the act;
Note: The note to subparagraph 29(2)(b)(i) explains who can
be a registered native title claimant.
(b) any body corporate that, 3 months after the notification day, is a
registered native title body corporate in relation to any of the land or waters
that will be affected by the act;
(c) any body corporate that becomes a registered native title body
corporate in relation to any of the land or waters that will be affected by the
act:
(i) after the end of that period of 3 months; and
(ii) as a result of a claim whose details were entered on the Register of
Native Title Claims before the end of that period of 3 months.
Ceasing to be a native title party
(2) A person ceases to be a native title party if the person ceases to be
a registered native title claimant.
Note: If a native title claim is successful, the registered
native title claimant will be succeeded as a native title party by the
registered native title body corporate.
Each of the following is a negotiation party:
(a) the Government party;
(b) any native title party;
(c) any grantee party.
(1) Unless the notice includes a statement that the Government party
considers the act attracts the expedited procedure:
(a) the Government party must give all native title parties an opportunity
to make submissions to it, in writing or orally, regarding the act;
and
(b) the negotiation parties must negotiate in good faith with a view to
obtaining the agreement of each of the native title parties to:
(i) the doing of the act; or
(ii) the doing of the act subject to conditions to be complied with by any
of the parties.
Note: The native title parties are set out in paragraphs
29(2)(a) and (b) and section 30. If they include a registered native title
claimant, the agreement will bind all of the persons in the native title claim
group concerned: see subsection 41(2).
Negotiation in good faith
(2) If any of the negotiation parties refuses or fails to negotiate as
mentioned in paragraph (1)(b) about matters unrelated to the effect of the act
on the determined or claimed native title rights and interests of the native
title parties, this does not mean that the negotiation party has not negotiated
in good faith for the purposes of that paragraph.
Arbitral body to assist in negotiations
(3) If any of the negotiation parties requests the arbitral body to do so,
the arbitral body must mediate among the parties to assist in obtaining their
agreement.
(1) This section applies if the notice given under section 29 includes a
statement that the Government party considers the act is an act attracting the
expedited procedure (see section 237).
Act may be done if no objection
(2) If the native title parties do not lodge an objection with the
arbitral body in accordance with subsection (3), the Government party may do the
act.
Kinds of objection
(3) A native title party may, within the period of 4 months after the
notification day (see subsection 29(4)), lodge an objection with the arbitral
body against the inclusion of the statement.
Objections against inclusion of statement
(4) If one or more native title parties object against the inclusion of
the statement, the arbitral body must determine whether the act is an act
attracting the expedited procedure. If the arbitral body determines that it is,
the Government party may do the act.
Act not attracting expected procedure
(5) If the arbitral body determines that the act is not an act attracting
the expedited procedure, subsection 31(1) applies as if the notice did not
include a statement that the Government party considers the act attracts the
expedited procedure.
Withdrawal of objection
(6) At any time before the arbitral body makes a determination under
subsection (4), a native title party may withdraw his or her objection. If all
such objections are withdrawn, the Government party may do the act.
Withdrawal of statement about expedited procedure
(7) At any time before the arbitral body makes a determination under
subsection (4), the Government party may, by giving written notice to the
negotiation parties, withdraw its statement that it considers the act is an act
attracting the expedited procedure. If it does so, subsection 31(1) applies as
if the notice did not include such a statement.
Profits, income etc.
(1) Without limiting the scope of any negotiations, they may, if relevant,
include the possibility of including a condition that has the effect that native
title parties are to be entitled to payments worked out by reference
to:
(a) the amount of profits made; or
(b) any income derived; or
(c) any things produced;
by any grantee party as a result of doing anything in relation to the land
or waters concerned after the act is done.
Existing rights, interests and use
(2) Without limiting the scope of any negotiations, the nature and extent
of the following may be taken into account:
(a) existing non-native title rights and interests in relation to the land
or waters concerned;
(b) existing use of the land or waters concerned by persons other than
native title parties;
(c) the practical effect of the exercise of those existing rights and
interests, and that existing use, on the exercise of any native title rights and
interests in relation to the land or waters concerned.
An agreement of the kind mentioned in paragraph 31(1)(b) has no effect in
relation to the act for the purposes of this Subdivision if it is made after the
making of a determination under section 34A, 36A or 38.
Determination at least 3 months after notice of act
(1) Subject to this section, if at least 4 months have passed since the
notification day (see subsection 29(4)) and the relevant Minister has complied
with the requirements of section 36B, the relevant Minister may make a
determination in relation to the act.
Determination only where no agreement etc.
(2) The relevant Minister must not make the determination if:
(a) an agreement of the kind mentioned in paragraph 31(1)(b) has been made
in relation to the act; or
(b) a determination has been made in relation to the act under section 36A
or 38; or
(c) the native title holders in relation to the land or waters concerned
do not have, in relation to the act, procedural rights of the kind mentioned in
subsection 24MD(6).
Determination that act may be done
(3) The relevant Minister must not make a determination that the act may
be done, or may be done subject to conditions to be complied with by any of the
negotiation parties (see subsection 36C(4)), unless the relevant Minister
considers that:
(a) the act is likely to be of substantial economic benefit to Australia;
and
(b) if the determination is not made at the time, that benefit will be
substantially reduced or will not arise; and
(c) if the act is done, or is done subject to the conditions, native title
holders in relation to the land or waters concerned will gain significant
benefits; and
(d) if the relevant Minister is a State Minister or a Territory
Minister—it is in the interests of the State or Territory to make the
determination at the time; and
(e) if the relevant Minister is the Commonwealth Minister—it is
in:
(i) in any case—the national interest; and
(ii) if the act concerned is an act attributable to a State or
Territory—the interests of the State or Territory;
to make the determination at the time.
Determination that act must not be done
(4) The relevant Minister must not make a determination that the act must
not be done (see subsection 36C(4)) unless the relevant Minister considers
that:
(a) if the relevant Minister is a State Minister or a Territory
Minister—it is in the interests of the State or Territory to make the
determination at the time; and
(b) if the relevant Minister is the Commonwealth Minister—it is
in:
(i) in any case—the national interest; and
(ii) if the act concerned is an act attributable to a State or
Territory—the interests of the State or Territory;
to make the determination at the time.
Relevant Minister may consider other matters
(5) Subsections (3) and (4) do not prevent the relevant Minister from
having regard to other matters in deciding whether to make a determination under
this section.
(1) Any negotiation party may apply to the arbitral body for a
determination under section 38 in relation to the act if:
(a) at least 6 months have passed since the notification day (see
subsection 29(4)); and
(b) no agreement of the kind mentioned in paragraph 31(1)(b) has been made
in relation to the act; and
(c) no determination has been made in relation to the act under section
34A.
Withdrawal of application
(2) At any time before a determination in relation to the act is made
under section 34A, 36A or 38, the negotiation party may withdraw the application
by giving notice to the arbitral body.
(1) Subject to section 37, the arbitral body must take all reasonable
steps to make a determination in relation to the act as soon as
practicable.
Determination despite failure to negotiate in good faith
(2) The arbitral body must make the determination even if the negotiation
parties (other than the party who applied for the determination) did not
negotiate in good faith as mentioned in paragraph 31(1)(b).
Report to Commonwealth Minister
(3) If the arbitral body is the NNTT and it does not make the
determination within the period of 4 months starting when the application is
made, it must, as soon as is reasonably practicable after the end of the period,
advise the Commonwealth Minister in writing of the reason for it not doing so
and include in that advice an estimate of when a determination is likely to be
made.
Relevant Minister may give arbitral body notice as to
urgency
(4) At any time after a negotiation party has made an application under
section 35 that has not been withdrawn, and before either:
(a) the negotiation parties have made an agreement of the kind mentioned
in paragraph 31(1)(b); or
(b) the arbitral body has made a determination under section 38;
the relevant Minister may give a written notice to the arbitral body
requesting the arbitral body to make such a determination within the period
specified in the notice. The period must end at a time later than 4 months after
the application under section 35 was made.
Relevant Minister may make determination
(1) If:
(a) the arbitral body has not made a determination in relation to the act
within the period specified in a notice under subsection 36(4); and
(b) no agreement of the kind mentioned in paragraph 31(1)(b) has been made
in relation to the act; and
(c) the relevant Minister has not made a determination in relation to the
act under section 34A; and
(d) the requirements of section 36B are met;
the relevant Minister may, subject to this section, make a determination in
relation to the act.
Criteria for making determination
(2) The relevant Minister may only make the determination if the relevant
Minister considers that:
(a) a determination under section 38 is unlikely to be made within a
period that is reasonable having regard to all the circumstances; and
(b) if the relevant Minister is a State Minister or a Territory
Minister—it is in the interests of the State or Territory to make the
determination at the time; and
(c) if the relevant Minister is the Commonwealth Minister—it is
in:
(i) in any case—the national interest; and
(ii) if the act concerned is an act attributable to a State or
Territory—the interests of the State or Territory;
to make the determination at the time.
Relevant Minister may consider other matters
(3) Subsection (2) does not prevent the relevant Minister from having
regard to other matters in deciding whether to make a determination under this
section.
(1) Before making a determination under section 34A or 36A, the relevant
Minister must give notice in accordance with subsection (2) (if relevant), and
with subsection (3), of this section.
Notice to arbitral body
(2) If:
(a) the determination is to be made under section 34A and an application
has been made to the arbitral body under section 35 for a determination in
relation to the act; or
(b) the determination is to be made under section 36A;
the relevant Minister must give written notice to the arbitral body
requiring it, by the end of the day specified in the notice, to give the
Minister and each negotiation party a summary of material that has been
presented to the arbitral body in the course of the arbitral body considering
whether to make a determination under section 38 in relation to the
act.
Notice to negotiation parties
(3) The relevant Minister must give written notice to each negotiation
party that the Minister is considering making the determination and that each
negotiation party:
(a) may, by the end of the day specified in the notice, give the Minister
any submission or other material that the negotiation party wants the Minister
to take into account in deciding whether to make the determination and, if so,
its terms; and
(b) if the negotiation party does so—must also give each of the
other negotiation parties a copy of the submission or other material;
and
(c) may, within 7 days after the specified day, in response to any
submission or other material given by any other negotiation party or the
arbitral body, give the Minister any further submission or other material that
the negotiation party wants the Minister to take into account as mentioned in
paragraph (a).
Specified day
(4) The day specified under subsection (2) or (3) must be the same in all
of the notices given under the subsections. It must be a day by which, in the
relevant Minister’s opinion, it is reasonable to assume that all of the
notices so given will have been received by, or will otherwise have come to the
attention of, the persons who must be so notified.
Natural justice
(5) If the relevant Minister complies with subsection (1), there is no
requirement for any person to be given any further hearing before the relevant
Minister makes the determination.
Material etc. taken into account
(6) In making the determination, the relevant Minister:
(a) must take into account:
(i) any submission or material provided by any of the negotiation parties
in accordance with subsection (3), but only if the negotiation party has
complied with the requirements of paragraph (3)(b); and
(ii) any report provided by the arbitral body; and
(b) may, but need not, take into account any other matter or
thing.
Minister’s power not limited
(7) The fact that no submission or other material of the kind mentioned in
subsection (3) has been given to the Minister before the end of the day
specified in the notice does not prevent the Minister from making the
determination.
Coverage of section
(1) This section:
(a) sets out the kind of determination that may be made under section 34A
or 36A; and
(b) states the effect of such a determination; and
(c) contains other provisions relevant to such a determination.
Determination
(2) The relevant Minister does not have a duty to make a determination.
This is so despite:
(a) the giving of any notice by the Minister; and
(b) the giving of any submission or other material to the Minister;
and
(c) any request by a negotiation party for the Minister to make the
determination; and
(d) any other circumstance.
Who makes determination
(3) A determination must be made by the relevant Minister
personally.
Kinds of determination
(4) The relevant Minister may make any one of the following
determinations:
(a) a determination that the act must not be done;
(b) a determination that the act may be done;
(c) a determination that the act may be done subject to conditions to be
complied with by any of the negotiation parties.
Trust condition
(5) If a condition to be complied with is that an amount is to be paid and
held in trust until it is dealt with in accordance with section 52:
(a) the arbitral body must determine the amount; and
(b) the amount, when paid, must be held in trust in accordance with the
regulations until it is dealt with in accordance with section 52.
Note: The NNTT cannot determine compensation (see Division 5
and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may
be able to do so.
Conditions to have contractual effect
(6) If the act is done, any conditions in a determination by the relevant
Minister under this section have effect, in addition to any effect that they may
have apart from this subsection, as if they were terms of a contract among the
negotiation parties. If a native title party is a registered native title
claimant, any other person included in the native title claim group (see section
253) concerned is a negotiation party for this purpose only.
Copy of determination to be tabled
(7) The relevant Minister must, as soon as practicable after making a
determination, and in any case within 15 sitting days, cause a copy of the
determination, together with reasons for the determination, to be
laid:
(a) if the relevant Minister is the Commonwealth Minister—before
each House of the Parliament; or
(b) if the relevant Minister is a State Minister—before the House,
or both of the Houses, of Parliament of the State concerned; or
(c) if the relevant Minister is a Territory Minister—before the
Legislative Assembly of the Territory concerned.
The arbitral body must not make a determination if:
(a) an agreement of the kind mentioned in paragraph 31(1)(b) has been
made; or
(b) a determination under section 34A or 36A has been made.
(1) Except where section 37 applies, the arbitral body must make one of
the following determinations:
(a) a determination that the act must not be done;
(b) a determination that the act may be done;
(c) a determination that the act may be done subject to conditions to be
complied with by any of the parties.
Profit-sharing conditions not to be determined
(2) The arbitral body must not determine a condition under paragraph
(1)(c) that has the effect that native title parties are to be entitled to
payments worked out by reference to:
(a) the amount of profits made; or
(b) any income derived; or
(c) any things produced;
by any grantee party as a result of doing anything in relation to the land
or waters concerned after the act is done.
(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 determined or
claimed 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 determined or claimed 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 and to the
State or Territory concerned;
(d) any economic or other detriment to any person other than a native
title party if the act is not done;
(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.
If:
(a) the arbitral body is making a determination in relation to an act
consisting of the creation of a right to mine in relation to an area;
and
(b) an agreement, or a determination by an arbitral body, under this
Subdivision involving the same negotiation parties was previously made in
relation to a future act consisting of the creation of a right to mine in
relation to the same area; and
(c) an issue was decided in the agreement or during the inquiry;
the negotiation parties must not, without leave of the arbitral body that
is making the determination, seek to vary the decision on the issue.
(1) Subject to this section:
(a) a determination by the arbitral body; or
(b) an agreement of the kind mentioned in paragraph 31(1)(b);
that the act may be done subject to conditions being complied with by the
parties has effect, if the act is done, as if the conditions were terms of a
contract among the negotiation parties. The effect is in addition to any other
effect that the agreement or determination may have apart from this
subsection.
Other negotiation parties
(2) If a native title party is a registered native title claimant, any
other person included in the native title claim group concerned is taken to be a
negotiation party for the purposes only of subsection (1).
Trust condition
(3) If, in the case of a determination by the arbitral body, a condition
to be complied with is that an amount is to be paid and held in trust until it
is dealt with in accordance with section 52:
(a) the arbitral body must determine the amount; and
(b) the amount, when paid, must be held in trust in accordance with the
regulations until it is dealt with in accordance with section 52.
Note: The NNTT cannot determine compensation (see Division 5
of this Part and Division 1 of Part 3). However, if the arbitral body is not the
NNTT, it may be able to do so.
Negotiation parties
(1) The negotiation parties must:
(a) give a copy of any agreement mentioned in paragraph 31(1)(b) to the
arbitral body; and
(b) advise the relevant Minister in writing of the making of any such
agreement.
Relevant Minister
(2) The relevant Minister must give a copy of any determination under
section 34A or 36A to the negotiation parties and the arbitral body.
Arbitral body
(3) The arbitral body must give a copy of any determination under section
38 to the negotiation parties and the relevant Minister.
(1) If a State Minister or a Territory Minister considers it to be in the
interests of the State or Territory to overrule the determination of a
recognised State/Territory body for the State or Territory, the State Minister
or Territory Minister may, by writing given to the recognised State/Territory
body, make a declaration in accordance with subsection (3).
Right of Commonwealth to overrule
(2) If the Commonwealth Minister considers it to be in:
(a) in any case—the national interest; or
(b) if the act concerned is an act attributable to a State or
Territory—the interests of the State or Territory;
to overrule a determination of the NNTT (other than a determination under
subsection 32(4), which deals with the expedited procedure), the Commonwealth
Minister may, by writing given to the NNTT, make a declaration in accordance
with subsection (3).
Kinds of declaration
(3) The Minister concerned may make either of the following
declarations:
(a) a declaration that the determination is overruled;
(b) a declaration that the determination is overruled and that conditions
set out in the declaration are to be complied with by any of the
parties.
Time limit for making declaration
(4) Any declaration by the Minister concerned must be made within 2 months
after the making of the determination.
Trust condition
(5) If a condition to be complied with is that an amount is to be paid and
held in trust until it is dealt with in accordance with section 52:
(a) the arbitral body concerned must determine the amount; and
(b) the amount, when paid, must be held in trust in accordance with the
regulations until it is dealt with in accordance with section 52.
Note: The NNTT cannot determine compensation (see Division 5
of this Part and Division 1 of Part 3). However, if the arbitral body is not the
NNTT, it may be able to do so.
Conditions have contractual effect
(6) If the act is done, any conditions in a declaration by a Minister
under this section have effect, in addition to any effect that they may have
apart from this subsection, as if they were terms of a contract among the
negotiation parties. If a native title party is a registered native title
claimant, any other person included in the native title claim group concerned is
a negotiation party for this purpose only.
Copy of declaration to be given to parties
(7) The arbitral body must give a copy of the declaration to the
negotiation parties.
(1) This section applies if 2 or more acts are, in accordance with
subsection 29(9), project acts for the purposes of this Subdivision.
General rule—project acts treated as a single act
(2) This Subdivision applies to all of the project acts as if they were a
single act.
Conditions
(3) However, this does not mean that conditions of the kind mentioned in
paragraph 31(1)(b), 36C(4)(c), 38(1)(c) or 42(3)(b) must:
(a) apply to all of the project acts comprising the single act;
or
(b) be the same for all of the project acts to which they apply.
Determination about alternative provisions
(1) If:
(a) a law of a State or Territory provides for alternative provisions to
those contained in this Subdivision in relation to some or all acts to which
this Subdivision applies that are attributable to the State or Territory;
and
(b) the Commonwealth Minister determines in writing that the alternative
provisions comply with subsection (2);
then, while the determination is in force, the alternative provisions have
effect instead of this Subdivision.
Requirement to be satisfied
(2) The alternative provisions comply with this subsection if, in the
opinion of the Commonwealth Minister, they:
(a) contain appropriate procedures for notifying registered native title
bodies corporate, representative bodies, registered native title claimants and
potential native title claimants of the act; and
(b) require negotiation in good faith among the persons concerned;
and
(c) provide for mediation by a person or body to assist in settling any
dispute among the persons concerned regarding the act; and
(d) give registered native title bodies corporate and registered native
title claimants the right to object against the act; and
(e) make provision on similar terms to section 30 and contain time limits
similar to those applicable under this Subdivision; and
(f) provide that the body determining the objection consists of, or
includes, persons enrolled for at least 5 years as legal practitioners
of:
(i) the High Court; or
(ii) another federal court; or
(iii) the Supreme Court of a State or Territory; and
(g) make provision to the same effect as section 39 in relation to matters
that are required to be taken into account by the body determining the
objection; and
(h) if the alternative provisions involve the hearing and determination of
the objection by a person or body other than the NNTT or a recognised
State/Territory body for the State or Territory—provide for a member of
the recognised State/Territory body (if any) or of the NNTT to participate in
the determination; and
(i) provide that any decision of the body determining the objection may
only be overruled on grounds of State or Territory interest or of national
interest; and
(j) make appropriate provision for compensation for the act, including
provision for trusts on similar terms to those in subsections 36C(5), 41(3) and
42(5); and
(k) if the alternative provisions allow a Minister to make a determination
in relation to the act in circumstances other than those covered in paragraph
(i)—provide for those circumstances to be similar to those set out in
section 34A or 36A, or both, and for requirements similar to those in sections
36B and 36C to apply.
Revocation of determination
(3) If at any time the alternative provisions are amended so that they no
longer comply with subsection (2), the Commonwealth Minister must:
(a) advise the State Minister or the Territory Minister concerned in
writing of the fact; and
(b) if at the end of 90 days, or such longer period as the Commonwealth
Minister allows, after doing so, the alternative provisions still do not
comply—in writing, revoke the determination under paragraph
(1)(b).
Regulations to make transitional provisions
(4) The regulations may prescribe any modifications of this Act that are
necessary to deal with transitional matters arising from the making, amendment
or revocation of determinations under this section.
Determination about alternative provisions
(1) If:
(a) a law of a State or Territory provides for alternative provisions to
those contained in this Subdivision in relation to some or all acts to which
this Subdivision applies that:
(i) are attributable to the State or Territory; and
(ii) relate, to any extent, to an area of land or waters that is a leased
or reserved area (see subsection (2)); and
(b) the Commonwealth Minister determines in writing that:
(i) so far as the provisions relate to an act of the kind mentioned in
subparagraph 26(1)(c)(iii) (which deals with certain compulsory
acquisitions)—the provisions comply with subsection (3) of this section;
and
(ii) so far as the provisions relate to an act of any other kind—the
provisions comply with subsection (4) of this section;
then, subject to subsection (7), while the determination is in force, the
alternative provisions have effect instead of this Subdivision.
Meaning of leased or reserved area
(2) In subsection (1):
leased or reserved area means:
(a) an area (a non-exclusive area):
(i) that is, or was (whether before or after this Act commenced), covered
by a freehold estate in fee simple or by a lease; and
(ii) over which all native title rights and interests have not been
extinguished; or
Example 1: An example of a freehold estate in fee simple
over which all native title rights and interests may not have been extinguished
is one whose grant or vesting is covered by subsection 23B(9).
Example 2: Examples of non-exclusive areas are areas covered
by non-exclusive agricultural leases and non-exclusive pastoral leases
(including those subject to section 47).
(b) an area that is, or was (whether before or after this Act
commenced):
(i) covered by a reservation, proclamation, dedication, condition,
permission or authority, made or conferred by the Crown in right of the State or
Territory or by the making, amendment or repeal of legislation of the State or
Territory, under which the whole or a part of the land or waters in the area was
to be used for public purposes generally or for a particular purpose;
and
(ii) in use for public purposes, for the particular purpose or for a
similar purpose.
Example: An example of an area covered by paragraph (b) is
an area containing a national park.
Requirement to be satisfied—compulsory acquisitions
(3) For the purposes of subparagraph (1)(b)(i), the alternative provisions
comply with this subsection if they confer on native title holders the same
procedural rights as they would have in relation to the act on the assumption
that they instead held ordinary title to any land concerned and to the land
adjoining, or surrounding, any waters concerned.
Requirement to be satisfied—other cases
(4) For the purposes of subparagraph (1)(b)(ii), the alternative
provisions comply with this subsection if, in the opinion of the Commonwealth
Minister:
(a) if the leased or reserved area is to any extent a non-exclusive
area:
(i) they confer on native title holders procedural rights in relation to
the act equivalent to those conferred on the holder of the freehold estate or
the lessee concerned; and
(ii) they make provision for compensation for the act’s effect on
the native title rights and interests of native title holders; or
(b) in any other case:
(i) they contain appropriate procedures for notifying registered native
title bodies corporate, registered native title claimants and potential native
title claimants of the act; and
(ii) they give registered native title bodies corporate and registered
native title claimants the right to object against the act and to be heard in
relation to the objection; and
(iii) they make provision for compensation for the act’s effect on
the native title rights and interests of native title holders.
Different provisions for different kinds of land or waters
(5) Laws of a State or Territory may make different provision under
subsection (1) in relation to different kinds of land or waters.
Note: In such a case, the Commonwealth Minister would need
to make separate determinations under that subsection.
Revocation of determination
(6) If at any time the alternative provisions are amended so that they no
longer comply as mentioned in subparagraph (1)(b)(i) or (ii), the Commonwealth
Minister must:
(a) advise the State Minister or the Territory Minister concerned in
writing of the fact; and
(b) if at the end of 90 days, or such longer period as the Commonwealth
Minister allows, after doing so, the alternative provisions still do not
comply—in writing, revoke the determination under paragraph
(1)(b).
Exclusion of certain compulsory acquisitions
(7) The alternative provisions do not apply to an act of the kind
mentioned in subparagraph 26(1)(c)(iii) (which deals with certain compulsory
acquisitions) if the act involves the acquisition of native title rights and
interests in relation to land or waters in both a leased or reserved area and an
area that is not a leased or reserved area.
Regulations to make transitional provisions
(8) The regulations may prescribe any modifications of this Act that are
necessary to deal with transitional matters arising from the making, amendment
or revocation of determinations under this section.
If:
(a) a particular future act is the creation or variation of a right to
mine in both a leased or reserved area (as defined in subsection 43A(2)) and an
area (the other area) that is not a leased or reserved area;
and
(b) because of section 43A, provisions of a State or Territory law would,
apart from this section, have effect in relation to the act;
then, for the purposes of this Subdivision:
(c) the act is taken to consist of 2 separate acts, as follows:
(i) one act consisting of the creation or variation of that right to mine,
but only in the leased or reserved area; and
(ii) the other act consisting of the creation or variation of that right
to mine, but only in the other area; and
(d) the act mentioned in subparagraph (c)(ii) is taken to be done only
when the right concerned is first exercised in the other area.
Note: In effect, this section splits the act in 2 (for
“right to negotiate” purposes only). Only the “act”
mentioned in subparagraph (c)(i)—not the “act” mentioned in
subparagraph (c)(ii)—attracts the alternative provisions under section
43A.
Without affecting its operation apart from this section, this Subdivision
also has the effect that it would have if each reference to a grantee party
were, by express provision, confined to a grantee party that is a foreign
corporation, or a trading or financial corporation formed within the limits of
the Commonwealth.
(1) This Subdivision applies if the conditions in this section are
met.
Person in claim group in respect of registered claim over non-exclusive
agricultural or pastoral lease
(2) A person must be included in the native title claim group (see section
253) in relation to a claim:
(a) for which there is an entry on the Register of Native Title Claims;
and
Note: Under paragraph 190(4)(d), entries on the Register
must be removed when the application in question is withdrawn, dismissed or
otherwise finalised.
(b) that relates to any extent to an area that is covered by a
non-exclusive agricultural lease or a non-exclusive pastoral lease.
Access for traditional activities
(3) Either:
(a) as at the end of 23 December 1996, the person included in the native
title claim group must have regularly had physical access to the whole or part
(the traditional access area) of the area that is covered by both
the claim and the lease for the purpose of carrying on one or more traditional
activities (see subsection (4)) of the person; or
(b) the person included in the native title claim group must be a
descendant of a person who, as at 23 December 1996, regularly had such physical
access.
Traditional activity
(4) A traditional activity is an activity of any of the
following kinds, but only if it is carried on for traditional purposes of
Aboriginal people or Torres Strait Islanders:
(a) hunting, fishing, gathering or camping;
(b) performing rites or other ceremonies;
(c) visiting sites of significance.
Conferral of rights
(1) At all times while this Subdivision applies, the person included in
the native title claim group has a right:
(a) to have access, in the same way and to the same extent as the access
mentioned in subsection 44A(3), to the traditional access area for the purpose
of carrying on the one or more traditional activities in that area in the same
way and to the same extent as they were carried on pursuant to the access
mentioned in that subsection; and
(b) to carry on those activities in that area in that way and to that
extent.
Lessee etc. rights prevail
(2) The rights of:
(a) the lessee under the lease; or
(b) any person with non-native title rights or interests in relation to
the traditional access area;
prevail over the rights conferred by subsection (1). To avoid doubt, the
existence and exercise of the rights conferred by subsection (1) do not prevent
the doing of any thing in exercise of the rights of the lessee or person with
the non-native title rights or interests.
Agreements about rights
(3) The lessee or any person with non-native title rights or interests in
relation to the traditional access area may make an agreement with the person
included in the native title claim group about:
(a) the manner of exercise of any of the rights conferred by subsection
(1); or
(b) the variation of any of those rights.
Note: For example, an agreement might be made requiring
notification of intended exercise of the rights.
Assistance in making agreements
(4) Any persons wishing to make such an agreement may request assistance
from the NNTT or a recognised State/Territory body in negotiating the
agreement.
Statutory access rights do not amount to native title
(5) To avoid doubt, the fact that the person satisfies the conditions in
section 44A does not mean that the person has native title rights and interests
in relation to the traditional access area.
(1) For so long as the person included in the native title claim group has
rights conferred by subsection 44B(1), no person can enforce any native title
rights or interests in relation to the whole or part of the land or waters
covered by the lease.
Other provisions not affected
(2) Subsection (1) does not affect the operation of any other provision of
this Act.
Note: The “right to negotiate” provisions in
Subdivision P are an example of provisions that are not intended to be
affected.
Laws etc. of benefit to Aboriginal peoples or Torres Strait
Islanders
(1) This Subdivision does not affect:
(a) any reservation or condition for the benefit of Aboriginal peoples or
Torres Strait Islanders contained:
(i) in any law of the Commonwealth, a State or a Territory; or
(ii) elsewhere; or
(b) the operation of any law of the Commonwealth, a State or a Territory
that allows for the granting of access rights to Aboriginal peoples or Torres
Strait Islanders; or
(c) the operation of any law of the Commonwealth, a State or Territory
that relates to the preservation or protection of any area or site of particular
significance to Aboriginal peoples or Torres Strait Islanders in accordance with
their traditions.
Laws of general application
(2) This Subdivision is not intended to imply that, in exercising rights
conferred by subsection 44B(1), a person is not subject to laws of the
Commonwealth, a State or a Territory that are of general application.
The Federal Court may, in its discretion, refuse to exercise the
jurisdiction conferred on it under subsection 213(2) in relation to a matter
involving a right conferred by subsection 44B(1) for the reason that an adequate
alternative means of resolving the matter is available.
If all of the persons involved in any dispute about a right conferred by
subsection 44B(1) agree, they may request the NNTT or a recognised
State/Territory body to mediate in the dispute.
Note: Persons wishing to make an indigenous land use
agreement about access in general may request assistance from the NNTT or a
recognised State/Territory body in negotiating the agreement: see sections 24BF,
24CF and 24DG.
Nothing in this Subdivision prevents:
(a) mediation or arbitration by any person or body of any matter arising
in relation to a right conferred by subsection 44B(1); or
(b) the making or enforcing of agreements about access to the area covered
by the non-exclusive agricultural lease or the non-exclusive pastoral lease
other than under rights conferred by subsection 44B(1).
10 Before section 45
Insert:
To avoid doubt, if:
(a) the grant, issue or creation of a lease, licence, permit or authority
is valid (including because of any provision of this Act); and
(b) the lease, licence, permit or authority requires or permits the doing
of any activity (whether or not subject to any conditions);
then:
(c) the requirement or permission, and the doing of any activity in giving
effect to the requirement or permission, prevail over any native title rights
and interests and any exercise of those rights and interests, but do not
extinguish them; and
(d) the existence and exercise of the native title rights and interests do
not prevent the doing of any activity in giving effect to the requirement or
permission; and
(e) native title holders are not entitled to compensation under this Act
for the doing of any activity in giving effect to the requirement or
permission.
Note: Any compensation to which the native title holders may
be entitled under this Act for the grant of the lease, licence, permit or
authority may take into account the doing of the activity.
11 Paragraph 47(3)(c)
Omit “proposed”.
12 Paragraph 47(3)(c)
Omit “Subdivision B”, substitute “Subdivision
P”.
12A After section 47
Insert:
When section applies
(1) This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made:
(i) a freehold estate exists, or a lease is in force, over the area or the
area is vested in any person, if the grant of the freehold estate or lease or
the vesting took place under legislation that makes provision for the grant or
vesting of such things only to, in or for the benefit of, Aboriginal peoples or
Torres Strait Islanders; or
(ii) the area is held on trust, or is reserved, for the benefit of
Aboriginal peoples or Torres Strait Islanders; and
(c) when the application is made, one or more members of the native title
claim group occupy the area.
Prior extinguishment to be disregarded
(2) For all purposes under this Act in relation to the application, any
extinguishment, of the native title rights and interests in relation to the area
that are claimed in the application, by any of the following acts must be
disregarded:
(a) the grant or vesting mentioned in subparagraph (1)(b)(i) or the
creation of the trust or reservation mentioned in subparagraph
(1)(b)(ii);
(b) the creation of any other prior interest in relation to the area,
other than, in the case of an area held on trust as mentioned in subparagraph
(1)(b)(ii), the grant of a freehold estate.
Note: The applicant will still need to show the existence of
any connection with the land or waters concerned that may be required by the
common law concept of native title.
Effect of determination
(3) If the determination on the application is that the native title claim
group hold the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the grant or vesting or of the creation of the trust
or reservation; or
(ii) the validity of the creation of any other prior interest in relation
to the area; or
(iii) any interest of the Crown in any capacity, or of any statutory
authority, in any public works on the land or waters concerned; and
(b) the non-extinguishment principle applies to the grant or vesting or
the creation of the trust or reservation or any other prior interest.
Exclusion of Crown ownership of natural resources
(4) For the purposes of this section, a reference to the creation of an
interest in relation to an area does not include a reference to the creation of
an interest that confirms ownership of natural resources by, or confers
ownership of natural resources on, the Crown in any capacity.
When section applies
(1) This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made, the area is not:
(i) covered by a freehold estate or a lease; or
(ii) covered by a reservation, proclamation, declaration, condition,
permission or authority, made or conferred by the Crown in any capacity, or by
the making, amendment or repeal of legislation of the Commonwealth, a State or a
Territory, under which the whole or a part of the land or waters in the area is
to be used for public purposes or for a particular purpose; or
(iii) subject to a resumption process (see paragraph (5)(b));
and
(c) when the application is made, one or more members of the native title
claim group occupy the area.
Prior extinguishment to be disregarded
(2) For all purposes under this Act in relation to the application, any
extinguishment, of the native title rights and interests in relation to the area
that are claimed in the application, by the creation of any prior interest in
relation to the area must be disregarded.
Note: The applicant will still need to show the existence of
any connection with the land or waters concerned that may be required by the
common law concept of native title.
Effect of determination
(3) If the determination on the application is that the native title claim
group hold the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the creation of any prior interest in relation to the
area; or
(ii) any interest of the Crown in any capacity, or of any statutory
authority, in any public works on the land or waters concerned; and
(b) the non-extinguishment principle applies to the creation of any prior
interest in relation to the area.
Renewals and extensions of leases
(4) For the purposes of paragraph (1)(b), if, after a lease covering an
area expires or is terminated, the lease is renewed, or its term is extended,
the area is taken to be covered by the lease during the period between the
expiry or termination and the renewal or extension.
Defined expressions
(5) For the purposes of this section:
(a) the creation of a prior interest in relation to an area
does not include the creation of an interest that confirms ownership of natural
resources by, or confers ownership of natural resources on, the Crown in any
capacity; and
(b) an area is subject to a resumption process at a
particular time (the test time) if:
(i) all interests last existing in relation to the area before the test
time were acquired, resumed or revoked by, or surrendered to, the Crown in any
capacity; and
(ii) when that happened, the Crown had a bona fide intention of using the
area for public purposes or for a particular purpose; and
(iii) the Crown still had a bona fide intention of that kind in relation
to the area at the test time.
13 Sections 48 and 49 and subsection
51(1)
After “Division 2,”, insert “2A, 2B,”.
14 Subsection 51(2)
Omit “acquisition under a Compulsory Acquisition Act”,
substitute “compulsory acquisition”.
15 Subsection 51(2)
Omit “set out in that Act for determining compensation”,
substitute “for determining compensation set out in the law under which
the compulsory acquisition takes place”.
Note: The heading to subsection 51(2) is altered by omitting
“Compulsory Acquisition Act” and substituting
“compulsory acquisition law”.
16 Paragraph 51(3)(a)
Omit “acquisition under a Compulsory Acquisition Act”,
substitute “compulsory acquisition”.
17 Paragraph 51(4)(b)
Omit “Compulsory Acquisition Act”, substitute “compulsory
acquisition law”.
18 Subsection 51(4)
Omit “that Act”, substitute “that law”.
19 After section 51
Insert:
Compensation limited by reference to freehold estate
(1) The total compensation payable under this Division for an act that
extinguishes all native title in relation to particular land or waters must not
exceed the amount that would be payable if the act were instead a compulsory
acquisition of a freehold estate in the land or waters.
This section is subject to section 53
(2) This section has effect subject to section 53 (which deals with the
requirement to provide “just terms” compensation).
20 Subsection 52(1)
Omit “compensation (the negotiated compensation) in
respect of a proposed act is being held in trust in accordance with”,
substitute “an amount (the trust amount) in respect of an
act is being held in trust in accordance with paragraph
36C(5)(b),”.
Note: The heading to section 52 is altered by omitting
“Compensation” and substituting
“Payment”.
21 Paragraph 52(1)(b)
Omit “no longer proposes”, substitute “is not
going”.
22 Subparagraph
52(1)(c)(ii)
Repeal the subparagraph, substitute:
(ii) the registered native title body corporate advises the trustee that
it wishes to accept the trust amount instead of any compensation to which the
native title holders may be entitled under Division 3 for the act; and
(iii) the person who paid the trust amount advises the trustee that the
person agrees to the registered native title body corporate accepting the trust
amount instead of any compensation to which the native title holders may be
entitled under Division 3 for the act;
23 Subparagraph
52(1)(d)(ii)
Omit “Compulsory Acquisition Act”, substitute “compulsory
acquisition law”.
24 Paragraph 52(1)(e)
Omit “negotiated compensation”, substitute “trust
amount”.
25 Subsections 52(2) to (7)
Omit “negotiated compensation” (wherever occurring), substitute
“trust amount”.
26 Paragraph 52(3)(b)
Omit “2, 3 or 4”, substitute “3”.
26A Paragraph 53(1)(a)
Omit “by the Commonwealth”.
26B Subsection 53(1)
Omit “from the Commonwealth as is necessary to ensure that the
acquisition is made on paragraph 51(xxxi) just terms.”,
substitute:
from:
(c) if the compensation is in respect of a future act attributable to a
State or a Territory—the State or Territory; or
(d) in any other case—the Commonwealth;
as is necessary to ensure that the acquisition is made on paragraph
51(xxxi) just terms.
28 Paragraph 137(2)(a)
After “past acts”, insert “or intermediate period
acts”.
29 Section 142
After “Subject to”, insert “subsection 151(2)
and”.
30 After Part 8
Insert:
Establishment
(1) There is to be a Register known as the Register of Indigenous Land Use
Agreements.
Registrar to establish and keep
(2) The Register must be established and kept by the Registrar.
Register may be kept by computer
(3) The Register may be kept by use of a computer.
Information to be included
(1) If the Registrar is required by Subdivision B, C or D of Division 3 of
Part 2 to register an agreement, the Registrar must enter in the Register the
following details of the agreement:
(a) a description of the area covered by the agreement; and
(b) the name of each party to the agreement and the address at which the
party can be contacted; and
(c) if the agreement specifies the period during which it will
operate—that period; and
(d) if the agreement includes any of the statements mentioned in
subsection 24EB(1)—a reference to the fact, setting out any such
statement.
Other information
(2) The Registrar may also enter in the Register any other details of the
agreement that the Registrar considers appropriate.
Notification of Commonwealth, State or Territory
(3) If the agreement relates to any future act, as soon as reasonably
practicable after entering the details, the Registrar must give notice in
writing:
(a) advising that the details have been entered; and
(b) setting out the details;
to any person or body to which the Registrar gave notice of the agreement
under paragraph 24BH(1)(a), 24CH(1)(a) or 24DI(1)(a).
Cases requiring removal
(1) The Registrar must remove the details of an agreement from the
Register if:
(a) in the case of an agreement under Subdivision B of Division 3 of Part
2—an approved determination of native title is made in relation to any of
the area covered by the agreement, and the persons who, under the determination,
hold native title in relation to the area are not the same as those who had
previously been determined to hold it; or
(b) in the case of an agreement under Subdivision C of Division 3 of Part
2—an approved determination of native title is made in relation to any of
the area covered by the agreement, and any of the persons who, under the
determination, hold native title in relation to the area is not a person who
authorised the making of the agreement as mentioned in:
(i) if the application relating to the agreement was certified by
representative Aboriginal/Torres Strait Islander bodies as mentioned in
paragraph 24CG(3)(a)—paragraph 202(8)(b); or
(ii) if the application relating to the agreement included a statement as
mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have
been met—that paragraph; or
(c) in any case:
(i) the agreement expires; or
(ii) all the parties advise the Registrar in writing that they wish to
terminate the agreement; or
(iii) the Federal Court, under subsection (2), orders the details to be
removed.
Note: If the details of an agreement are removed from the
Register, the agreement will cease to have effect under this Act from the time
the details are removed: see subsection 24EA(1) and paragraph
24EB(1)(b).
Federal Court order
(2) The Federal Court may, if it is satisfied on application by a party to
the agreement, or by a representative Aboriginal/Torres Strait Islander body for
the area covered by the agreement, that the ground in subsection (3) has been
made out, order the Registrar to remove the details of the agreement from the
Register.
Ground for order
(3) The ground is that a party was induced to enter into the agreement by
reason of fraud, undue influence or duress by any person (whether or not a party
to the agreement).
Register to be available during business hours
(1) Subject to section 199E, the Registrar must ensure that the Register
is available for inspection by any member of the public during normal business
hours.
Prescribed fee
(2) Subject to section 199E, when the Register is available for
inspection, any member of the public may inspect the Register if the member pays
the prescribed fee.
If register kept on computer
(3) If the Register is kept wholly or partly by use of a computer,
subsection (1) is taken to be complied with, so far as the Register is kept in
that way, by giving members of the public access to a computer terminal that
they can use to inspect the Register, either by viewing a screen display or by
obtaining a computer print-out.
(1) If the parties to an agreement whose details are entered on the
Register advise the Registrar in writing that they do not wish some or all of
the details to be available for inspection by the public, section 199D does not
apply to the part of the Register containing the details concerned.
Exception for basic information
(2) Subsection (1) does not apply to details required to be entered in the
Register under subsection 199B(1).
The Registrar may, by signed instrument, delegate all or any of his or
her powers under:
(a) this Part; or
(b) Subdivision B, C or D of Division 3 of Part 2 (which also deals with
indigenous land use agreements);
to the holder of an office, or to a body, established by or under a law of
a State or Territory, if the State or Territory agrees to the
delegation.
31 After paragraph
211(1)(b)
Insert:
(ba) the law does not provide that such a licence, permit or other
instrument is only to be granted or issued for research, environmental
protection, public health or public safety purposes; and
31A After paragraph
212(2)(d)
Insert:
(da) stock-routes; or
32 At the end of subsection
211(2)
Add:
Note: In carrying on the class of activity, or gaining the
access, the native title holders are subject to laws of general
application.
33 Subsection 212(3)
Omit “or impair”.
Note: The heading to subsection 212(3) is altered by
omitting “under subsection (2)”.
34 Section 214
Repeal the section, substitute:
The following are disallowable instruments for the purposes of section
46A of the Acts Interpretation Act 1901:
(a) a determination under paragraph 23HA(a), 24GB(9)(c) or 24GD(6)(a),
subparagraph 24GE(1)(f)(i), paragraph 24HA(7)(a), 24ID(3)(a) or 24JB(6)(a),
subsection 24KA(8), 24MD(7), 24NA(9), 26A(1), 26B(1) or 26C(2), paragraph
43(1)(b) or 43A(1)(b), subsection 202(1), 207A(1), 207B(3), 245(4), 251C(4) or
(5) or 252(1) or paragraph (i) of the definition of infrastructure
facility in section 253;
(b) an instrument under section 203AD;
(c) an approval under subparagraph 26(1)(c)(iv);
(d) a revocation of a determination under subsection 26A(8), 26B(9),
26C(6), 43(3) or 43A(6) or paragraph 207A(4)(b) or 207B(7)(d).
35 Subparagraph
215(2)(a)(i)
After “Register of Native Title Claims”, insert “, the
Register of Indigenous Land Use Agreements”.
36 At the end of section
215
Add:
Registers
(3) Without limiting subsection (1), the regulations may make provision,
not inconsistent with this Act, relating to the way in which:
(a) the Register of Native Title Claims; or
(b) the Register of Indigenous Land Use Agreements; or
(c) the National Native Title Register;
is to be established and kept, or relating to any other matter concerning
such a register.
37 Subsection 223(3)
Omit “subsection (4)”, substitute “subsections (3A) and
(4)”.
38 After subsection 223(3)
Insert:
Subsection (3) does not apply to statutory access rights
(3A) Subsection (3) does not apply to rights and interests conferred by
Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory
access rights for native title claimants).
39 After section 232
Insert:
(1) This section defines intermediate period act.
Note: Intermediate period acts may be validated under
Division 2A of Part 2.
Acts between 1.1.94 and 23.12.96
(2) Subject to subsection (3), an act is an intermediate period
act if:
(a) the act took place at any time during the period from the beginning of
1 January 1994 until the end of 23 December 1996 when native title existed in
relation to particular land or waters; and
(b) the act did not consist of the making, amendment or repeal of
legislation, other than legislation that affects the native title by:
(i) creating a freehold estate, lease or licence over the land or waters;
or
(ii) containing, making or conferring a reservation, proclamation or
dedication under which the whole or part of the land or waters is to be used for
a particular purpose; and
Note: An intermediate period act, such as the grant of a
lease, may be validated under Division 2A of Part 2 even if the legislation
under which the act was done is not so validated.
(c) the act was invalid to any extent because of Division 3 of Part 2 or
for any other reason, but it would have been valid to that extent if the native
title did not exist; and
(d) the act was not a past act (see section 228); and
(e) at any time before the act was done, either:
(i) a grant of a freehold estate or a lease (other than a mining lease)
was made covering any of the land or waters affected by the act; or
(ii) a public work was constructed or established on any of the land or
waters affected by the act; and
(f) the grant, or the construction or establishment, mentioned in
paragraph (e) was valid (including because of any provision of this
Act).
Exclusion by regulation
(3) The regulations may provide that an act is not an intermediate
period act.
(1) This section defines the expression category A intermediate
period act.
Grant of freehold estates
(2) An intermediate period act consisting of the grant or vesting of a
freehold estate is a category A intermediate period act.
Grant of certain leases etc.
(3) An intermediate period act consisting of the grant or vesting
of:
(a) a Scheduled interest (see section 249C); or
(b) a commercial lease that is neither an agricultural lease nor a
pastoral lease; or
(c) an exclusive agricultural lease (see section 247A) or an exclusive
pastoral lease (see section 248A); or
(d) a residential lease; or
(e) a community purposes lease (see section 249A); or
(f) what is taken by subsection 245(3) (which deals with the dissection of
mining leases into certain other leases) to be a separate lease in respect of
land or waters mentioned in paragraph (a) of that subsection, assuming that the
reference in subsection 245(2) to “1 January 1994” were instead a
reference to “24 December 1996”; or
(g) any lease (other than a mining lease) that confers a right of
exclusive possession over particular land or waters;
is a category A intermediate period act.
Vesting of certain land or waters
(4) If:
(a) an intermediate period act is done by or under legislation of a State
or a Territory; and
(b) the intermediate period act consists of the vesting of particular land
or waters in any person; and
(c) a right of exclusive possession of the land or waters is expressly or
impliedly conferred on the person by or under the legislation;
the intermediate period act is a category A intermediate period
act.
Construction of public works
(7) An intermediate period act consisting of the construction or
establishment of any public work is a category A intermediate period
act.
(8) An intermediate period act is not a category A intermediate
period act if it is:
(a) the grant or vesting of any thing that is made or done by or under
legislation that makes provision for the grant or vesting of such things only
to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders;
or
(b) the grant or vesting of any thing to or in a person to hold on trust
for the benefit of Aboriginal peoples or Torres Strait Islanders; or
(c) the grant or vesting of any thing over particular land or waters, if
at the time a thing covered by paragraph (a) or (b) is in effect in relation to
the land or waters.
Exclusion by regulation
(9) The regulations may provide that an act is not a category A
intermediate period act.
A category B intermediate period act is an intermediate
period act consisting of the grant of a lease if:
(a) the grant is not a category A intermediate period act; and
(b) the lease is not:
(i) a mining lease; or
(ii) a lease granted by or under legislation that grants leases only to or
for the benefit of Aboriginal peoples or Torres Strait Islanders; or
(iii) a lease granted to a person to hold on trust for the benefit of
Aboriginal peoples or Torres Strait Islanders; or
(iv) any other lease granted over particular land or waters, if at the
time a lease covered by subparagraph (ii) or (iii) is in force over the land or
waters.
A category C intermediate period act is an intermediate
period act consisting of the grant of a mining lease.
A category D intermediate period act is any intermediate
period act that is not a category A intermediate period act, a category B
intermediate period act or a category C intermediate period act.
40 Subsection 233(2)
Repeal the subsection, substitute:
Validation and extinguishment legislation excluded
(2) If:
(a) the act consists of the making, amendment or repeal of legislation;
and
(b) the act purports to:
(i) validate any past act or intermediate period act; or
(ii) extinguish native title, or extinguish native title rights and
interests to an extent; and
(c) the act is done or permitted to be done by Division 2, 2A or 2B of
Part 2;
subsection (1) does not apply to the extent that the act purports to
validate the act, or to extinguish the native title or the native title rights
and interests.
41 Sections 234, 235 and
236
Repeal the sections.
42 Paragraph 237(a)
Omit “does not directly interfere with”, substitute “is
not likely to interfere directly with the physical aspects of”.
43 Paragraphs 237(b) and
(c)
Omit “does not”, substitute “is not likely
to”.
44 Paragraph 237(c)
Omit “will”, substitute “is likely to”.
45 After section 237
Insert:
The word extinguish, in relation to native title, means
permanently extinguish the native title. To avoid any doubt, this means that
after the extinguishment the native title rights and interests cannot revive,
even if the act that caused the extinguishment ceases to have effect.
46 At the end of section
247
Add:
Aquaculture
(2) Except in so far as the expression is used in or in relation to
Division 2 of Part 2, agricultural lease also includes a lease
that permits the lessee to use the land or waters covered by the lease solely or
primarily for aquacultural purposes.
47 After section 247
Insert:
An exclusive agricultural lease is an agricultural lease
that:
(a) confers a right of exclusive possession over the land or waters
covered by the lease; or
(b) is a Scheduled interest.
A non-exclusive agricultural lease is an
agricultural lease that is not an exclusive agricultural lease.
Note: In practice, there might be few, or no, non-exclusive
agricultural leases.
48 After section 248
Insert:
An exclusive pastoral lease is a pastoral lease
that:
(a) confers a right of exclusive possession over the land or waters
covered by the lease; or
(b) is a Scheduled interest.
A non-exclusive pastoral lease
is a pastoral lease that is not an exclusive pastoral lease.
49 After section 249
Insert:
A community purposes lease is a lease that:
(a) permits the lessee to use the land or waters covered by the lease
solely or primarily for community, religious, educational, charitable or
sporting purposes; or
(b) contains a statement to the effect that it is solely or primarily a
community purposes lease or that it is granted solely or primarily for
community, religious, educational, charitable or sporting purposes.
A perpetual lease is a lease with the following
features:
(a) the lease is in perpetuity;
(b) the lease may be forfeited, cancelled or otherwise cease to have
effect for failure to pay rent or for contravention of a condition or
conditions.
(1) A Scheduled interest is:
(a) anything set out in Schedule 1, other than a mining lease;
or
(b) an interest, in relation to land or waters, of a type declared by a
regulation for the purposes of this paragraph to be a Scheduled
interest.
Regulations to cover single type of interest only
(2) A particular regulation only has effect for the purposes of paragraph
(1)(b) if it covers a single type of interest.
50 Before section 252
Insert:
For the purposes of this Act, persons holding native title in relation to
land or waters in the area covered by an indigenous land use agreement
authorise the making of the agreement if:
(a) where there is a process of decision-making that, under the
traditional laws and customs of the persons who hold or may hold the common or
group rights comprising the native title, must be complied with in relation to
authorising things of that kind—the persons authorise the making of the
agreement in accordance with that process; or
(b) where there is no such process—the persons authorise the making
of the agreement in accordance with a process of decision-making agreed to and
adopted, by the persons who hold or may hold the common or group rights
comprising the native title, in relation to authorising the making of the
agreement or of things of that kind.
For the purposes of this Act, all the persons in a native title claim
group or compensation claim group authorise a person or persons to
make a native title determination application or a compensation application, and
to deal with matters arising in relation to it, if:
(a) where there is a process of decision-making that, under the
traditional laws and customs of the persons in the native title claim group or
compensation claim group, must be complied with in relation to authorising
things of that kind—the persons in the native title claim group or
compensation claim group authorise the person or persons to make the application
and to deal with the matters in accordance with that process; or
(b) where there is no such process—the persons in the native title
claim group or compensation claim group authorise the other person or persons to
make the application and to deal with the matters in accordance with a process
of decision-making agreed to and adopted, by the persons in the native title
claim group or compensation claim group, in relation to authorising the making
of the application and dealing with the matters, or in relation to doing things
of that kind.
Areas in Western Australia
(1) Subject to subsection (4), a particular area in Western Australia is a
town or city if, as at 23 December 1996, it was gazetted as a
townsite or as suburban lands under section 10 of the Land Act 1933 of
Western Australia.
Areas in South Australia
(2) Subject to subsection (4), a particular area in South Australia is a
town or city if, as at 23 December 1996, it was:
(a) within the boundaries of a town constituted under section 5(g) of the
Crown Lands Act 1929 of South Australia; or
(b) set apart as town lands, or suburban lands, by notice under section
5(h) of that Act; or
(c) town lands, park lands, or suburban lands, within the meaning of
section 4 of that Act; or
(d) gazetted in the South Australian Government Gazette, or proclaimed by
the Governor of South Australia, as suburban lands, where the gazettal took
place, or the proclamation was made, before the enactment of the Crown Lands
Act 1929 of South Australia; or
(e) a township within the meaning of section 5(1) of the Local
Government Act, 1934 of South Australia; or
(f) park land, within the meaning of section 5(1) of that Act, that was
within or adjacent to a township within the meaning of that section;
or
(g) the area in relation to which a municipal council was constituted
under section 6 of that Act; or
(h) a township within the meaning of section 319 of that Act; or
(i) a township allotment within the meaning of section 5 of the Renmark
Irrigation Trust Act 1936 of South Australia; or
(j) town lands within the meaning of section 5 of the Water
Conservation Act 1936 of South Australia.
Areas in the Northern Territory
(3) Subject to subsection (4), a particular area in the Northern Territory
is a town or city if:
(a) as at 23 December 1996, it was gazetted as a town, other than the town
of Darwin, under subsection 95(1) of the Crown Lands Act 1992 of the
Northern Territory; or
(b) it is the area in the Schedule to the Darwin Lands Acquisition Act
1945 of the Commonwealth; or
(c) it is within a municipality constituted under section 29 of the
Local Government Act 1993 of the Northern Territory.
Exclusion of areas in Western Australia, South Australia or Northern
Territory
(4) A particular area is not a town or city under subsection
(1), (2) or (3) if the Commonwealth Minister makes a written determination to
that effect.
Other areas
(5) A particular area in any State or Territory is a town or
city if the Commonwealth Minister makes a written determination stating
that, in his or her opinion, the area was a town or a city as at 23 December
1996.
Exclusion of ordinary meaning
(6) Except as mentioned in this section, an area is not a town or
city.
In this Act, a reference to land or waters on which a public work is
constructed, established or situated includes a reference to any adjacent land
or waters the use of which is or was necessary for, or incidental to, the
construction, establishment or operation of the work.
51 Section 253
Insert:
authorise:
(a) in relation to the making of indigenous land area agreements—has
the meaning given by section 251A; and
(b) in relation to the making of native title determination applications
or compensation applications, and dealing with matters arising in relation to
such applications—has the meaning given by section 251B.
52 Section 253 (definition of Compulsory
Acquisition Act)
Repeal the definition.
53 Section 253
Insert:
forest operations means:
(a) the planting or tending, in a plantation or forest, of trees intended
for felling; or
(b) the felling of such trees.
54 Section 253 (definition of grantee
party)
Omit “paragraph 29(2)(d)”, substitute “paragraph
29(2)(c)”.
55 Section 253
Insert:
horticulture includes:
(a) propagation or maintenance, as well as cultivation; or
(b) propagation, maintenance or cultivation of seeds, bulbs, spores or
similar things; or
(c) propagation, maintenance or cultivation of fungi; or
(d) propagation, maintenance or cultivation in environments other than
soil, whether natural or artificial.
56 Section 253
Insert:
indigenous land use agreement has the meaning given by
sections 24BA, 24CA and 24DA.
57 Section 253
Insert:
infrastructure facility includes any of the
following:
(a) a road, railway, bridge or other transport facility;
(b) a jetty or port;
(c) an airport or landing strip;
(d) an electricity generation, transmission or distribution
facility;
(e) a storage, distribution or gathering or other transmission facility
for:
(i) oil or gas; or
(ii) derivatives of oil or gas;
(f) a storage or transportation facility for coal, any other mineral or
any mineral concentrate;
(g) a dam, pipeline, channel or other water management, distribution or
reticulation facility;
(h) a cable, antenna, tower or other communication facility;
(i) any other thing that is similar to any or all of the things mentioned
in paragraphs (a) to (h) and that the Commonwealth Minister determines in
writing to be an infrastructure facility for the purposes of this
paragraph.
58 Section 253 (definition of negotiation
party)
Repeal the definition, substitute:
negotiation party has the meaning given by section
30A.
59 Section 253 (definition of public
work)
Repeal the definition, substitute:
public work means:
(a) any of the following that is constructed or established by or on
behalf of the Crown, or a local government body or other statutory authority of
the Crown, in any of its capacities:
(i) a building, or other structure (including a memorial), that is a
fixture; or
(ii) a road, railway or bridge; or
(iia) where the expression is used in or for the purposes of Division 2 or
2A of Part 2—a stock-route; or
(iii) a well, or bore, for obtaining water; or
(iv) any major earthworks; or
(b) a building that is constructed with the authority of the Crown, other
than on a lease.
Note: In addition, section 251D deals with land or waters
relating to public works.
60 Section 253
Insert:
Register of Indigenous Land Use Agreements means the register
established and maintained under Part 8A.
61 Section 253 (definition of statutory
authority)
After “authority or body”, insert “(including a
corporation sole)”.
62 Section 253
Insert:
subject to section 24FA protection has the meaning given by
Subdivision F of Division 3 of Part 2.
1 Section 12
Repeal the section.
2 Subsection 13(1)
Omit “Registrar”, substitute “Federal
Court”.
Note: The heading to subsection 13(1) is altered by omitting
“Native Title Registrar” and substituting “Federal
Court”.
3 After subsection 13(1)
Insert:
Time limit for applications
(1A) No application is allowed to be made under paragraph (1)(a) later
than 6 years after the commencement of this subsection.
4 Paragraph 13(2)(a)
Omit “the NNTT or”.
Note: The heading to subsection 13(2) is altered by omitting
“NNTT or”.
5 Subsection 13(2)
Omit “NNTT or”.
6 After subsection 13(2)
Insert:
Note: Under subsection 62(3), if no native title
determination application has previously been made in relation to the area to
which a compensation application relates, the compensation application must be
accompanied by the affidavit, and contain the information, that would be
required for a native title determination application for the
area.
7 Paragraphs 13(4)(a) and
(6)(a)
Omit “the NNTT or”.
8 Subsection 50(2)
Omit “Registrar”, substitute “Federal
Court”.
Note: The heading to subsection 50(2) is altered by omitting
“Registrar” and substituting “Federal
Court”.
9 After subsection 50(2)
Insert:
Time limit for Division 3 compensation
(2A) If an act gives rise to an entitlement to compensation payable under
Division 3, no application is allowed to be made under Part 3 for a
determination of the compensation more than 6 years after the later
of:
(a) the commencement of this subsection; and
(b) the time when the doing of the act is notified to all of the following
who exist for the area concerned at the time of the notification:
(i) registered native title bodies corporate;
(ii) registered native title claimants;
(iii) representative Aboriginal/Torres Strait Islander bodies.
10 Section 55
Omit “the NNTT or” (wherever occurring).
Note: The heading to section 55 is altered by omitting
“NNTT and”.
11 Section 55
Omit “sections”, substitute “section”.
12 Section 55
Omit “and 57”, substitute “or 57”.
13 Subsection 56(1)
Omit “the NNTT or”.
14 Subsection 56(2)
Omit “NNTT or the” (wherever occurring).
15 Subsection 56(4)
Omit “the NNTT or”.
16 Subsection 57(2)
Omit “the NNTT or” (wherever occurring).
17 Paragraph 58(d)
Omit “their”, substitute “its”.
18 Section 59
Omit all the words and paragraphs after “or 57”.
19 Part 3
Repeal the Part, substitute:
(1) This Part has the rules for making:
(a) applications to the Federal Court for native title determinations,
revised native title determinations and compensation: see Division 1;
and
(b) various other applications to the Federal Court: see Division 1A;
and
(c) applications to the National Native Title Tribunal under the
“right to negotiate” provisions in Subdivision P of Division 3 of
Part 2: see Division 2;
(d) applications to the Native Title Registrar objecting against
registration of certain indigenous land use agreements: see Division
2A.
There are also some general rules that apply to the various kinds of
application: see Division 3.
(2) Basically, the provisions set out who may make the different kinds of
application, what they must contain and what is to be done when they are
made.
Applications that may be made
(1) The following table sets out applications that may be made under this
Division to the Federal Court and the persons who may make each of those
applications:
|
Applications |
||
|---|---|---|
|
Kind of application |
Application |
Persons who may make application |
|
Native title determination application |
Application, as mentioned in subsection 13(1), for a determination of
native title in relation to an area for which there is no approved determination
of native title. |
(1) A person or persons authorised by the persons (the native title
claim group) who claim to hold the common or group rights and interests
comprising the particular native title, provided the person or persons are also
included in the native title claim group; or Note 1: The person or persons will be the applicant: see
subsection (2) of this section. Note 2: The word authorised has a special
meaning: see section 251B. (2) A person who holds a non-native title interest in relation to the whole
of the area in relation to which the determination is sought; or (3) The Commonwealth Minister; or (4) The State Minister or the Territory Minister, if the determination is
sought in relation to an area within the jurisdictional limits of the State or
Territory concerned. |
|
Revised native title determination application |
Application, as mentioned in subsection 13(1), for revocation or variation
of an approved determination of native title, on the grounds set out in
subsection 13(5). |
(1) The registered native title body corporate; or (2) The Commonwealth Minister; or (3) The State Minister or the Territory Minister, if the determination is
sought in relation to an area within the jurisdictional limits of the State or
Territory concerned; or (4) The Native Title Registrar. |
|
Compensation application |
Application under subsection 50(2) for a determination of
compensation. |
(1) The registered native title body corporate (if any); or (2) A person or persons authorised by the persons (the compensation
claim group) who claim to be entitled to the compensation, provided the
person or persons are also included in the compensation claim group. Note 1: The person or persons will be the applicant: see
subsection (2) of this section. Note 2: The word authorised has a special
meaning: see section 251B. |
Applicant in case of applications authorised by claim
groups
(2) In the case of:
(a) a native title determination application made by a person or persons
authorised to make the application by a native title claim group; or
(b) a compensation application made by a person or persons authorised to
make the application by a compensation claim group;
the following apply:
(c) the person is, or the persons are jointly, the
applicant; and
(d) none of the other members of the native title claim group or
compensation claim group is the applicant.
Applicant’s name and address
(3) An application must state the name and address for service of the
person who is, or persons who are, the applicant.
Applications authorised by persons
(4) A native title determination application, or a compensation
application, that persons in a native title claim group or a compensation claim
group authorise the applicant to make must:
(a) name the persons; or
(b) otherwise describe the persons sufficiently clearly so that it can be
ascertained whether any particular person is one of those persons.
Form etc.
(5) An application must:
(a) be in the prescribed form; and
(b) be filed in the Federal Court; and
(c) contain such information in relation to the matters sought to be
determined as is prescribed; and
(d) be accompanied by any prescribed documents and any prescribed
fee.
No native title determination application if approved determination of
native title
(1) A native title determination application must not be made in relation
to an area for which there is an approved determination of native
title.
Claimant applications not to be made covering previous exclusive
possession act areas
(2) If:
(a) a previous exclusive possession act (see section 23B) was done in
relation to an area; and
(b) either:
(i) the act was an act attributable to the Commonwealth; or
(ii) the act was attributable to a State or Territory and a law of the
State or Territory has made provision as mentioned in section 23E in relation to
the act;
a claimant application must not be made that covers any of the
area.
Claimant applications not to claim certain rights and interests in
previous non-exclusive possession act areas
(3) If:
(a) a previous non-exclusive possession act (see section 23F) was done in
relation to an area; and
(b) either:
(i) the act was an act attributable to the Commonwealth; or
(ii) the act was attributable to a State or Territory and a law of the
State or Territory has made provision as mentioned in section 23I in relation to
the act;
a claimant application must not be made in which any of the native title
rights and interests claimed confer possession, occupation, use and enjoyment of
any of the area to the exclusion of all others.
Section not to apply in section 47, 47A or 47B cases
(4) However, subsection (2) or (3) does not apply to an application if the
only previous exclusive possession act or previous non-exclusive possession act
concerned was one whose extinguishment of native title rights and interests
would be required by section 47, 47A or 47B to be disregarded were the
application to be made.
Claimant applications
(1) A claimant application (see section 253):
(a) must be accompanied by an affidavit sworn by the applicant:
(i) that the applicant believes that the native title rights and interests
claimed by the native title claim group have not been extinguished in relation
to any part of the area covered by the application; and
(ii) that the applicant believes that none of the area covered by the
application is also covered by an entry in the National Native Title Register;
and
(iii) that the applicant believes that all of the statements made in the
application are true; and
(iv) that the applicant is authorised by the other persons included in the
native title claim group to make the application and to deal with matters
arising in relation to it; and
(v) stating the basis on which the applicant is authorised as mentioned in
subparagraph (iv); and
Note: The word authorised has a special
meaning: see section 251B.
(b) must contain the details specified in subsection (2); and
(c) may contain details of:
(i) if any member of the native title claim group currently has, or
previously had, any traditional physical connection with any of the land or
waters covered by the application—that traditional physical connection;
or
(ii) if any member of the native title claim group has been prevented from
gaining access to any of the land or waters covered by the application—the
circumstances in which the access was prevented.
Note: The applicant will be the registered native title
claimant in relation to the area claimed if and for so long as the claim is
entered on the Register of Native Title Claims.
Details required by paragraph (1)(b)
(2) For the purposes of paragraph (1)(b), the details required are as
follows:
(a) information, whether by physical description or otherwise, that
enables the boundaries of:
(i) the area covered by the application; and
(ii) any areas within those boundaries that are not covered by the
application;
to be identified;
(b) a map showing the boundaries of the area mentioned in subparagraph
(a)(i);
(c) details and results of all searches carried out to determine the
existence of any non-native title rights and interests in relation to the land
or waters in the area covered by the application;
(d) a description of the native title rights and interests claimed in
relation to particular land or waters (including any activities in exercise of
those rights and interests), but not merely consisting of a statement to the
effect that the native title rights and interests are all native title rights
and interests that may exist, or that have not been extinguished, at
law;
(e) a general description of the factual basis on which it is asserted
that the native title rights and interests claimed exist and in particular
that:
(i) the native title claim group have, and the predecessors of those
persons had, an association with the area; and
(ii) there exist traditional laws and customs that give rise to the
claimed native title; and
(iii) the native title claim group have continued to hold the native title
in accordance with those traditional laws and customs;
(f) if the native title claim group currently carry on any activities in
relation to the land or waters—details of those activities;
(g) details of any other applications to the High Court, Federal Court or
a recognised State/Territory body, of which the applicant is aware, that have
been made in relation to the whole or a part of the area covered by the
application and that seek a determination of native title or a determination of
compensation in relation to native title;
(h) details of any notices under section 29 (or under a corresponding
provision of a law of a State or Territory), of which the applicant is aware,
that have been given and that relate to the whole or a part of the
area.
Note: Notices under section 29 are relevant to subsection
190A(2).
Compensation applications
(3) In the case of a compensation application whose making was authorised
by a compensation claim group, the application:
(a) must be accompanied by an affidavit sworn by the applicant:
(i) that the applicant believes that native title rights and interests
exist or have existed in relation to the area; and
(ii) that the applicant believes that all of the statements made in the
application are true; and
(iii) that the applicant is authorised by the other persons included in
the compensation claim group to make the application and to deal with matters
arising in relation to it; and
(iv) stating the basis on which the applicant is authorised as mentioned
in subparagraph (iii); and
Note: The word authorised has a special
meaning: see section 251B.
(b) must contain the details that would be required to be specified by
paragraph (1)(b), and may contain the details that would be permitted under
paragraph (1)(c), if the compensation application were instead a native title
determination application in respect of the native title involved in the
compensation application.
In the case of:
(a) a claimant application; or
(b) a compensation application whose making was authorised by a
compensation claim group;
the applicant may deal with all matters arising under this Act in relation
to the application.
If an application under section 61 is filed in the Federal Court, the
Registrar of the Federal Court must, as soon as practicable, give the Native
Title Registrar a copy of:
(a) the application; and
(b) any affidavit that accompanies the application under paragraph
62(1)(a) or (3)(a); and
(c) any prescribed documents that accompany the application under
paragraph 61(5)(d).
Amendment not to result in inclusion of additional areas
(1) An amendment of an application must not result in the inclusion of any
area of land or waters that was not covered by the original
application.
Note: The Federal Court Rules provide for the amendment of
applications.
Exception to subsection (1)
(2) However, if:
(a) the application is a claimant application (see section 253);
and
(b) the amendment combines the application with another claimant
application or claimant applications;
subsection (1) does not prevent the inclusion of any area of land or waters
covered by the other application or applications.
Application may be amended despite section 190A
consideration
(3) In the case of a claimant application, the fact that the Registrar is,
under section 190A, considering the claim made in the application does not
prevent amendment of the application.
Registrar of the Federal Court to give copy of amended application to
Native Title Registrar
(4) If an application is amended, the Registrar of the Federal Court must,
as soon as practicable, give a copy of the amended application to the Native
Title Registrar.
Group applications—amendment to change applicant
(5) If a claimant application, or a compensation application whose making
was authorised by a compensation claim group, is amended so as to replace the
applicant with a new applicant, the amended application must be accompanied by
an affidavit sworn by the new applicant:
(a) that the new applicant is authorised by the other persons included in
the native title claim group, or the compensation claim group, to deal with
matters arising in relation to the application; and
(b) stating the basis on which the new applicant is authorised as
mentioned in paragraph (a).
Registrar to comply with section
(1) If the Native Title Registrar is given a copy of an application under
section 63, the Registrar must comply with the requirements of this
section.
Copies to State/Territory Minister
(2) If any of the area covered by the application is within the
jurisdictional limits of a State or Territory, the Registrar must, as soon as is
reasonably practicable, give the State Minister or Territory Minister for the
State or Territory a copy of:
(a) the application; and
(b) any other documents that the Registrar of the Federal Court gives the
Native Title Registrar under section 63 in relation to the
application.
Copies to representative bodies
(2A) The Registrar must, as soon as is reasonably practicable, give the
representative bodies for the area covered by the application a copy
of:
(a) the application; and
(b) any other documents that the Registrar of the Federal Court gives the
Native Title Registrar under section 63 in relation to the
application.
Notice to be given
(3) Subject to this section, the Registrar must:
(a) give notice containing details of the application to the following
persons or bodies (other than the applicant in relation to the
application):
(i) any registered native title claimant in relation to any of the area
covered by the application; and
(ii) any registered native title body corporate in relation to any of the
area covered by the application; and
(iii) any representative Aboriginal/Torres Strait Islander body for any of
the area covered by the application; and
(iv) subject to subsection (5), any person who, when the application was
filed in the Federal Court, held a proprietary interest, in relation to any of
the area covered by the application, that is registered in a public register of
interests in relation to land or waters maintained by the Commonwealth, a State
or Territory; and
(v) the Commonwealth Minister; and
(vi) any local government body for any of the area covered by the
application; and
(vii) if the Registrar considers it appropriate in relation to the
person—any person whose interests may be affected by a determination in
relation to the application; and
(b) give a copy of the notice to the Federal Court; and
(c) if any of the area covered by the application is within the
jurisdictional limits of a State or Territory—give a copy of the notice to
the State Minister or Territory Minister for the State or Territory;
and
(d) notify the public in the determined way of the application.
Exception where application is struck out
(4) Subsection (3) does not apply if:
(a) the State or Territory Minister applies to the Federal Court under
subsection 84C(1) or otherwise, within 28 days after the day on which the State
or Territory Minister is given a copy of the application under subsection (2),
to strike out the application; and
(b) the Court strikes out the application.
Exception to subparagraph (3)(a)(iv)
(5) If the Registrar considers that, in the circumstances, it would be
unreasonable to give notice to a person in accordance with subparagraph
(3)(a)(iv), the Registrar is not required to give notice to that
person.
Notice etc. not to be given until claim registration decision
made
(6) If the application is a claimant application:
(a) the Registrar must not comply with subsection (3) until the Registrar
has decided, in accordance with section 190A, whether or not to accept for
registration the claim made in the application; and
(b) the notice required to be given under subsection (3) must state
whether or not the Registrar has accepted the claim for registration.
Federal Court order as to notice
(7) The Registrar may apply to the Federal Court for an order as
to:
(a) whether a particular person or class of persons must be given notice
under paragraph (3)(a); or
(b) how such notice must be given.
Notice to specify day
(8) A notice under paragraph (3)(a) or (d) must specify a day as the
notification day for the application. Each such notice in relation
to the application must specify the same day.
Which days may be specified
(9) That day must be a day by which, in the Registrar’s opinion, it
is reasonable to assume that all notices under paragraphs (3)(a) and (d) in
relation to the application will have been received by, or will otherwise have
come to the attention of, the persons who must be notified under those
paragraphs.
Contents of notice
(10) A notice under paragraph (3)(a) or (d) must also include a statement
to the effect that:
(a) in the case of a non-claimant application (see section 253)—the
area covered by the application may be subject to section 24FA protection
unless, at the end of the period of 3 months starting on the notification day
(as defined in subsection (8) of this section), the area is covered by a
relevant native title claim (as defined in section 24FE); and
(b) in the case of any native title determination application—as
there can be only one determination of native title for an area, if a person
does not become a party in relation to the application, there may be no other
opportunity for the Federal Court, in making its determination, to take into
account the person’s native title rights and interests in relation to the
area concerned; and
(c) in any case—a person who wants to be a party in relation to the
application must notify the Federal Court, in writing, within the period of 3
months starting on the notification day (as defined in subsection (8)), or,
after that period, get the leave of the Federal Court under subsection 84(5) to
become a party.
Native Title Registrar to notify parties etc.
(1) If:
(a) the Native Title Registrar is given a copy of an amended application
under section 64; and
(b) the amendment concerned results in a change to the area of land or
waters covered by the original application; and
(c) subsection (2) does not apply;
the Registrar must:
(d) give notice of the amended application to each person who, when the
Registrar receives the copy, is a party to a proceeding under Part 4 in relation
to the application; and
(e) if, when the Registrar receives the copy, the period specified in the
notice in accordance with paragraph 66(10)(c) has not ended:
(i) give notice of the amended application to all persons to whom the
Registrar gave notice of the application in accordance with paragraph 66(3)(a);
and
(ii) notify the public in the determined way of the amended
application.
Combined applications
(2) If an amended application of which the Registrar is given a copy under
section 64 results from combining the application with one or more other
applications, the Native Title Registrar must:
(a) give notice of the combining of the applications to each person who,
immediately before the combining of the applications, was a party to a
proceeding under Part 4 in relation to any of the applications; and
(b) if, when the Registrar receives the copy, the period specified in the
notice in accordance with paragraph 66(10)(c) has not ended:
(i) give notice
of the combining of the applications to all persons to whom the Registrar gave
notice of the applications in accordance with paragraph 66(3)(a);
and
(ii) notify the public in the determined way of the combining of the
applications.
Federal Court order as to notice
(3) The Registrar may apply to the Federal Court for an order as
to:
(a) whether a particular person or class of persons must be given notice
under subsection (1) or (2); or
(b) how such notice must be given.
Federal Court may direct Native Title Registrar to give
notice
(4) The Federal Court may, if it considers it necessary, direct the Native
Title Registrar to give such additional notice of the amended application as the
Court considers appropriate.
Parties to original applications become parties to combined
application
(5) If an amended application of which the Registrar is given a copy under
section 64 results from combining the application with one or more other
applications, each person who, immediately before the combining of the
applications, was a party to a proceeding under Part 4 in relation to any of the
applications becomes a party to a proceeding under Part 4 in relation to the
combined application.
(1) If 2 or more proceedings before the Federal Court relate to native
title determination applications that cover (in whole or in part) the same area,
the Court must make such order as it considers appropriate to ensure that, to
the extent that the applications cover the same area, they are dealt with in the
same proceeding.
Splitting of application area
(2) Without limiting subsection (1), the order of the Court may provide
that different parts of the area covered by an application are to be dealt with
in separate proceedings.
If there is an approved determination of native title (the first
determination) in relation to a particular area, the Federal Court must
not:
(a) conduct any proceeding relating to an application for another
determination of native title; or
(b) make any other determination of native title;
in relation to that area or to an area wholly within that area, except in
the case of:
(c) an application as mentioned in subsection 13(1) to revoke or vary the
first determination; or
(d) a review or appeal of the first determination.
Note: Paragraph 13(1)(a) provides that no native title
determination application can be made in relation to an area for which there is
already an approved determination of native title.
(1) The following table sets out applications that may be made under this
Division to the Federal Court and the persons who may make each of those
applications:
|
Applications |
||
|---|---|---|
|
Kind of application |
Application |
Persons who may make application |
|
Claim registration application |
Application as mentioned in subsection 190D(2) for review of a decision of
the Registrar not to accept a claim for registration. |
The applicant in relation to the application under section 61. |
|
Application to remove agreement from Register |
Application as mentioned in subsection 199C(2) for an order to remove the
details of an agreement from the Register of Indigenous Land Use
Agreements. |
(1) A party to the agreement; or (2) A representative Aboriginal/Torres Strait Islander body for the area
covered by the agreement. |
|
Application about transfer of records |
Application as mentioned in subsection 203FC(4) for orders to ensure that a
representative Aboriginal/Torres Strait Islander body complies with directions
under subsection 203FC(1). |
A person affected by the body’s non-compliance with the
directions. |
Other applications
(2) This Division also applies to any other application to the Federal
Court in relation to a matter arising under this Act.
Federal Court Rules
(1) The application must be filed in the Federal Court and must comply
with any Rules of the Federal Court about:
(a) the form of the application; or
(b) information to be contained in the application; or
(c) documents that must accompany the application; or
(d) any other matter relating to the application.
Prescribed fees
(2) The application must be accompanied by any prescribed fee.
The following table sets out applications that may be made to the
National Native Title Tribunal under this Division and the persons who may make
each of those applications:
|
Applications |
||
|---|---|---|
|
Kind of application |
Application |
Persons who may make application |
|
Expedited procedure objection application |
Application objecting as mentioned in subsection 32(3) against the
inclusion of a statement that an act is an act attracting the expedited
procedure. |
A native title party. |
|
Future act determination application |
Application as mentioned in section 35 for a determination in relation to a
future act. |
A negotiation party. |
An application must:
(a) be in the prescribed form; and
(b) be given to the Registrar; and
(c) contain such information in relation to the matters sought to be
determined as is prescribed; and
(d) be accompanied by any prescribed documents and any prescribed
fee.
If an application complies with section 76, the National Native Title
Tribunal must accept the application.
Note: The procedure to be followed in relation to these
applications is set out in Subdivision P of Division 3 of Part
2.
An application under subsection 24DJ(1) objecting against registration of
an agreement on the ground that it would not be fair and reasonable to register
it must:
(a) be in the prescribed form; and
(b) be given to the Registrar; and
(c) state reasons why it would not be fair and reasonable to register the
agreement; and
(d) be accompanied by any prescribed documents and any prescribed
fee.
If an application complies with section 77A, the Registrar must accept
the application.
Native Title Registrar may assist applicants, respondents
etc.
(1) The Native Title Registrar may give such assistance as he or she
considers reasonable to:
(a) help people prepare applications and accompanying material and to help
them, at any stage of a proceeding, in matters related to the proceeding;
and
(b) help other people, at any stage of a proceeding, in matters related to
the proceeding.
Types of assistance
(2) Without limiting subsection (1), the assistance may include:
(a) providing research services; or
(b) conducting searches of registers or other records of current or former
interests in land or waters.
No assistance to search own registers etc.
(3) Unless the Native Title Registrar considers there are special reasons
for doing so, the Registrar must not give assistance to the Commonwealth, a
State or a Territory by way of conducting searches of registers or other records
maintained by the Commonwealth, the State or the Territory.
Requests must be considered
(1) If, during negotiations in relation to a compensation application
under this Part, a person or persons involved in the negotiations propose that
the whole or part of the compensation should be in a form other than money, the
other person or persons involved in the negotiations:
(a) must consider the proposal; and
(b) must negotiate in good faith in relation to the proposal.
Examples of non-monetary compensation
(2) The transfer of land or other property or the provision of goods or
services is an example of compensation in a form other than money.
20 Division 1 of Part 4
Repeal the Division, substitute:
This Part has the rules for processing Federal Court applications, and
making determinations, relating to native title. Division 1A has the general
rules, and the other Divisions of the Part deal with the following
topics:
(a) referring applications to the NNTT for mediation (see Division
1B);
(b) agreements and unopposed applications (see Division 1C);
(c) conferences (see Division 2);
(d) orders (see Division 3).
The provisions of this Part apply in proceedings in relation to
applications filed in the Federal Court that relate to native title.
The Federal Court has jurisdiction to hear and determine applications
filed in the Federal Court that relate to native title and that jurisdiction is
exclusive of the jurisdiction of all other courts except the High
Court.
Rules of evidence
(1) The Federal Court is bound by the rules of evidence, except to the
extent that the Court otherwise orders.
Concerns of Aboriginal peoples and Torres Strait Islanders
(2) In conducting its proceedings, the Court may take account of the
cultural and customary concerns of Aboriginal peoples and Torres Strait
Islanders, but not so as to prejudice unduly any other party to the
proceedings.
Assessor to assist Court
(1) The Chief Justice may direct an assessor to assist the Federal Court
in relation to a proceeding.
Assessor subject to Court’s control
(2) The assessor is, in relation to that proceeding, subject to the
control and direction of the Court.
Assessor not to exercise judicial power
(3) In assisting the Court, the assessor is not to exercise any judicial
power of the Court.
Request to State Minister or Territory Minister
(1) If a State Minister or Territory Minister is a party to a proceeding,
the Federal Court may, for the purposes of the proceeding, request that Minister
to conduct searches of the State or Territory’s registers or other records
of current or former interests in land or waters and to report the results to
the Court.
Request to Native Title Registrar
(2) However, if:
(a) no State Minister or Territory Minister is a party to the proceeding;
or
(b) the Federal Court considers it appropriate;
the Federal Court may, for the purposes of the proceeding, instead request
the Native Title Registrar to conduct such searches and to report the results to
the Court.
Coverage of section
(1) This section applies to proceedings in relation to applications to
which section 61 applies.
Applicant
(2) The applicant is a party to the proceedings.
Affected persons
(3) Another person is a party to the proceedings if:
(a) any of the following applies:
(i) the person is covered by paragraph 66(3)(a);
(ii) the person claims to hold native title in relation to land or waters
in the area covered by the application;
(iii) the person’s interests may be affected by a determination in
the proceedings; and
(b) the person notifies the Federal Court, in writing, within the period
specified in the notice under section 66, that the person wants to be a party to
the proceeding.
State or Territory Ministers
(4) If any of the area covered by the application is within the
jurisdictional limits of a State or Territory, the State Minister or Territory
Minister for the State or Territory is a party to the proceedings unless the
Minister gives the Federal Court written notice, within the period specified in
the notice under section 66, that the Minister does not want to be a
party.
Joining parties
(5) The Federal Court may at any time join any person as a party to the
proceedings.
Parties may withdraw before first hearing of proceeding
(6) In addition to any other rights to withdraw from the proceedings, any
party to the proceedings, other than the applicant, may, at any time before the
first hearing of the proceedings starts, cease to be a party by giving written
notice to the Court.
Parties may withdraw with leave of Federal Court
(7) In addition to any other rights to withdraw from the proceedings, any
party to the proceedings, other than the applicant, may, with the leave of the
Federal Court, cease to be a party.
Dismissing parties
(8) The Federal Court may at any time order that a person, other than the
applicant, cease to be a party to the proceedings.
Commonwealth Minister may intervene
(1) The Commonwealth Minister may, at any time, on behalf of the
Commonwealth, by giving written notice to the Federal Court, intervene in a
proceeding before the Court in a matter arising under this Act.
Court may order costs against Commonwealth
(2) If the Commonwealth Minister intervenes in a proceeding before the
Court, the Court may make an order as to costs against the
Commonwealth.
Commonwealth Minister taken to be a party for purposes of
appeal
(3) If the Commonwealth Minister intervenes in a proceeding before the
Court, then, for the purposes of the institution and prosecution of an appeal
from a judgment given in the proceeding, the Commonwealth Minister is taken to
be a party to the proceeding.
Court may order costs against Commonwealth if Commonwealth Minister
appeals
(4) If, under subsection (3), the Commonwealth Minister institutes an
appeal from a judgment, a court hearing the appeal may make an order as to costs
against the Commonwealth.
(1) A party to a proceeding may appoint a society, organisation,
association or other body to act as agent on behalf of the party in relation to
the proceeding.
Body may act for 2 or more parties
(2) The same body may act as agent for 2 or more parties in the same
proceeding.
Example: An industry body may act as agent for a number of
its members who are parties to a particular proceeding.
Strike-out application
(1) If an application (the main application) does not comply
with section 61 (which deals with the basic requirements for applications), 61A
(which provides that certain applications must not be made) or 62 (which
requires applications to be accompanied by affidavits and to contain certain
details), a party to the proceedings may at any time apply to the Federal Court
to strike out the application.
Court must consider strike-out application before other
proceedings
(2) The Court must, before any further proceedings take place in relation
to the main application, consider the application made under subsection
(1).
Registrar of Court to advise Native Title Registrar of application
etc.
(3) The Registrar of the Court must advise the Native Title Registrar of
the making of any application under subsection (1) and of the outcome of the
application.
Other strike-out applications unaffected
(4) This section does not prevent the making of any other application to
strike out the main application.
A party may appear in person or may be represented by a barrister, a
solicitor or, with the leave of the Federal Court, another person.
(1) Unless the Federal Court orders otherwise, each party to a proceeding
must bear his or her own costs.
Unreasonable conduct
(2) Without limiting the Court’s power to make orders under
subsection (1), if the Federal Court is satisfied that a party to a proceeding
has, by any unreasonable act or omission, caused another party to incur costs in
connection with the institution or conduct of the proceeding, the Court may
order the first-mentioned party to pay some or all of those costs.
Subject to subsection 82(1), the Federal Court may:
(a) receive into evidence the transcript of evidence in any other
proceedings before:
(i) the Court; or
(ii) another court; or
(iii) the NNTT; or
(iv) a recognised State/Territory body; or
(v) any other person or body;
and draw any conclusions of fact from that transcript that it thinks
proper; and
(b) receive into evidence the transcript of evidence in any proceedings
before the assessor and draw any conclusions of fact from that transcript that
it thinks proper; and
(c) adopt any recommendation, finding, decision or judgment of any court,
person or body of a kind mentioned in any of subparagraphs (a)(i) to
(v).
Proceeding not involving compensation
(1) The purpose of mediation in a proceeding that does not involve a
compensation application is to assist the parties to reach agreement on some or
all of the following matters:
(a) whether native title exists or existed in relation to the area of land
or waters covered by the application;
(b) if native title exists or existed in relation to the area of land or
waters covered by the application:
(i) who holds or held the native title;
(ii) the nature, extent and manner of exercise of the native title rights
and interests in relation to the area;
(iii) the nature and extent of any other interests in relation to the
area;
(iv) the relationship between the rights and interests in subparagraphs
(ii) and (iii) (taking into account the effects of this Act);
(v) to the extent that the area is not covered by a non-exclusive
agricultural lease or a non-exclusive pastoral lease—whether the native
title rights and interests confer or conferred possession, occupation, use and
enjoyment of the land or waters on its holders to the exclusion of all
others.
Note: The matters set out in paragraphs (a) and (b) are
based on those that are required, under section 225, for a determination of
native title.
Proceeding involving compensation
(2) The purpose of mediation in a proceeding that involves a compensation
application is to assist the parties to reach agreement on some or all of the
following matters:
(a) the matters set out in paragraphs (1)(a) and (b) in relation to the
area of land or waters covered by the application;
(b) the amount or kind of any compensation payable;
(c) the name of the person or persons entitled to any compensation or the
method for determining the person or persons;
(d) the method (if any) for determining the amount or kind of compensation
to be given to each person;
(e) the method for determining any dispute regarding the entitlement of a
person to an amount of compensation.
Note: The matters set out in paragraphs (b) to (e) reflect
the matters that, under section 94, must be set out in an order for
compensation.
Federal Court must refer applications to mediation
(1) Unless an order is made under subsection (2) that there be no
mediation, the Federal Court must refer every application under section 61 to
the NNTT for mediation, including the ascertaining of agreed facts, as soon as
practicable after the end of the period specified in the notice under section
66.
Court may order no mediation
(2) The Court may, on application by a party to the proceeding, or of its
own motion, make an order that there be no mediation in relation to the whole of
the proceeding or a part of the proceeding.
No mediation if it will be unnecessary etc.
(3) The Court, upon application under subsection (2) or if it is
considering making an order of its own motion, must order that there be no
mediation in relation to the whole of the proceeding or a part of the proceeding
if the Court considers that:
(a) any mediation will be unnecessary in relation to the whole or that
part, whether because of an agreement between the parties about the whole or the
part of the proceeding or for any other reason; or
(b) there is no likelihood of the parties being able to reach agreement
on, or on facts relevant to, any of the matters set out in subsection 86A(1) or
(2) in relation to the whole or that part; or
(c) the applicant in relation to the application under section 61 has not
provided sufficient detail (whether in the application or otherwise) about the
matters mentioned in subsection 86A(1) or (2) in relation to the whole or that
part.
Factors to take into account
(4) In deciding whether to make an order that there be no mediation in
relation to the whole of the proceeding or a part of the proceeding, the Court
is to take the following factors into account:
(a) the number of parties;
(b) the number of those parties who have appointed the same agent under
section 84B or same representative;
(c) how long it is likely to take to reach agreement on the matters set
out in subsection 86A(1) or (2) in relation to the whole or the part of the
proceeding;
(d) the size of the area involved;
(e) the nature and extent of any non-native title rights and interests in
relation to the land and waters in the area;
(f) any other factor that the Court considers relevant.
Whole or part of a proceeding may be referred at any time
(5) In addition to referring a proceeding to mediation under subsection
(1), the Court may, at any time in a proceeding, refer the whole or a part of
the proceeding to the NNTT for mediation if the Court considers that the parties
will be able to reach agreement on, or on facts relevant to, any of the matters
set out in subsection 86A(1) or (2).
Court may order mediation to cease
(1) The Court may, of its own motion, at any time in a proceeding, order
that mediation is to cease in relation to the whole or a part of the proceeding
if the Court considers that:
(a) any further mediation will be unnecessary in relation to the whole or
that part; or
(b) there is no likelihood of the parties being able to reach agreement
on, or on facts relevant to, any of the matters set out in subsection 86A(1) or
(2) in relation to the whole or that part.
Party may seek cessation of mediation
(2) A party to a proceeding may, at any time after 3 months after the
start of mediation, apply to the Court for an order that mediation cease in
relation to the whole of the proceeding or a part of the proceeding.
Where Court must order mediation to cease
(3) If the party making the application is:
(a) the applicant in relation to the application under section 61;
or
(b) the Commonwealth, a State or a Territory;
the Court must make an order that mediation is to cease unless the Court is
satisfied that the mediation is likely to be successful in enabling the parties
to reach agreement on any of the matters set out in subsection 86A(1) or (2) in
relation to the whole or the part of the proceeding.
Where Court may order mediation to cease
(4) If the party making the application is any other person, the Court may
make such an order unless the Court is satisfied that the mediation is likely to
be successful as mentioned in subsection (3).
Court to consider NNTT report
(5) The Court, in deciding whether to make an order under subsection (1),
(3) or (4), must take into account any report provided by the NNTT under section
86E or by the presiding member of the NNTT under subsection 136G(3).
Court may determine fact or law
(1) The Court may, at any time during mediation, determine a question of
fact or law that is referred to it by the NNTT.
Note: Under subsection 136D(1), the presiding member of the
NNTT may refer to the Federal Court a question of fact or law that arises during
mediation.
Court may adopt agreement on facts
(2) The Court may adopt any agreement on facts between the parties,
reached during mediation.
The Federal Court may request the NNTT to provide reports on the progress
of any mediation under this Division being undertaken by the NNTT and may
specify when the report is to be provided.
Parties may negotiate for agreement
(1) Some or all of the parties to a proceeding in relation to an
application may negotiate with a view to agreeing to action that will result in
any one or more of the following:
(a) the application being withdrawn or amended;
(b) the parties to the proceeding being varied;
(c) any other thing being done in relation to the application.
The agreement may involve matters other than native title.
Assistance by NNTT
(2) The parties may request assistance from the NNTT in negotiating the
agreement.
Court may order adjournment to help negotiations
(3) The Federal Court may order an adjournment of the proceeding to allow
time for the negotiations. It may do so on its own motion or on application by a
party.
Court may end adjournment
(4) The Federal Court may order that the adjournment end. It may do
so:
(a) on its own motion; or
(b) on application by a party; or
(c) if the NNTT reports that the negotiations are unlikely to
succeed.
Court’s powers not limited
(5) Subsection (3) does not limit the Federal Court’s powers to
order an adjournment.
Federal Court may make order
(1) If, at any stage of a proceeding in relation to an application under
section 61, but after the end of the period specified in the notice given under
section 66:
(a) the application is unopposed; and
(b) the Federal Court is satisfied that an order in, or consistent with,
the terms sought by the applicant is within the power of the Court;
the Court may, if it appears appropriate to do so, make such an order
without holding a hearing or, if a hearing has started, without completing the
hearing.
Note: If the application involves making a determination of
native title, the Court’s order would need to comply with section 94A
(which deals with the requirements of native title determination
orders).
Meaning of unopposed
(2) For the purpose of this section, an application is unopposed
if the only party is the applicant or if each other party notifies the
Federal Court in writing that he or she does not oppose an order in, or
consistent with, the terms sought by the applicant.
Power of Court
(1) If, at any stage of proceedings after the end of the period specified
in the notice given under section 66:
(a) agreement is reached between the parties on the terms of an order of
the Federal Court in relation to:
(i) the proceedings; or
(ii) a part of the proceedings; or
(iii) a matter arising out of the proceedings; and
(b) the terms of the agreement, in writing signed by or on behalf of the
parties, are filed with the Court; and
(c) the Court is satisfied that an order in, or consistent with, those
terms would be within the power of the Court;
the Court may, if it appears to it to be appropriate to do so, act in
accordance with whichever of subsection (2) or (3) is relevant in the particular
case.
Agreement as to order
(2) If the agreement is on the terms of an order of the Court in relation
to the proceedings, the Court may make an order in, or consistent with, those
terms without holding a hearing or, if a hearing has started, without completing
the hearing.
Note: If the application involves making a determination of
native title, the Court’s order would need to comply with section 94A
(which deals with the requirements of native title determination
orders).
Agreement as to part of proceedings
(3) If the agreement relates to a part of the proceedings or a matter
arising out of the proceedings, the Court may in its order give effect to the
terms of the agreement without, if it has not already done so, dealing at the
hearing with the part of the proceedings or the matter arising out of the
proceedings, as the case may be, to which the agreement relates.
21 After section 94
Insert:
An order in which the Federal Court makes a determination of native title
must set out details of the matters mentioned in section 225 (which defines
determination of native title).
22 After section 97
Insert:
The Registrar has the power to conduct, or arrange for the conducting of,
searches:
(a) as requested by the Federal Court under section 83A; or
(b) for the purposes of section 190A or any other provision of this
Act.
23 Section 98
Repeal the section, substitute:
The Registrar has the powers set out in Parts 7, 8 and 8A in relation to
the Register of Native Title Claims, the National Native Title Register and the
Register of Indigenous Land Use Agreements.
Registrar may keep other records and information
(1) The Registrar has the power to keep such other records and information
as he or she considers appropriate and to make those records or that information
available to the public.
Certain information to be confidential
(2) The Registrar must not make particular information available to the
public if the Registrar considers that it would not be in the public interest
for the information to be available to the public.
Concerns of Aboriginal peoples and Torres Strait Islanders
(3) In determining whether it would or would not be in the public interest
for information to be available to the public, the Registrar must have due
regard to the cultural and customary concerns of Aboriginal peoples and Torres
Strait Islanders.
24 After subsection 108(1)
Insert:
Mediation for Federal Court proceedings
(1A) The Tribunal has the functions in relation to Federal Court
proceedings given to the Tribunal by Division 4A.
Requests for assistance or mediation
(1B) The Tribunal has the function of providing assistance or mediating in
accordance with any provision of this Act.
25 Subsection 109(2)
Repeal the subsection, substitute:
Concerns of Aboriginal peoples and Torres Strait Islanders
(2) The Tribunal, in carrying out its functions, may take account of the
cultural and customary concerns of Aboriginal peoples and Torres Strait
Islanders, but not so as to prejudice unduly any party to any proceedings that
may be involved.
26 Subsection 109(3)
Omit “conducting an inquiry”, substitute “carrying out
its functions”.
26A Section 110 (table, column dealing with
persons who may be appointed, row dealing with presidential
members)
Add:
|
; or (3) A person who is, and has been for at least 5 years, enrolled as a
legal practitioner of the High Court, of another federal court or of the Supreme
Court of a State or Territory. |
27 Subsections 122(1) and
(3)
Omit “Part 4”, substitute “Part 3”.
28 Subsection 123(1)
Omit “sections 69 and”, substitute
“section”.
29 Paragraph 123(1)(b)
Repeal the paragraph, substitute:
(b) the persons who are to conduct mediation in a particular proceeding,
or to provide assistance in making or negotiating agreements under this
Act;
30 Paragraph 123(1)(c)
Omit “, or for the purposes of making a decision under section
69”.
31 Subsection 124(1)
Omit “Subject to section 69, the”, substitute
“The”.
32 Subdivision B of Division 4 of Part 6
(heading)
Repeal the heading, substitute:
33 After section 131
Insert:
(1) The President may engage a person as a consultant in relation to any
assistance or mediation that the Tribunal provides under any provision of this
Act.
Consultants to have relevant skills or knowledge
(2) The President may only engage a person under subsection (1)
if:
(a) the person has, in the opinion of the President, particular skills or
knowledge in relation to matters of substantial relevance to the assistance or
mediation; and
(b) so far as is reasonably practicable, the person has, in the opinion of
the President, special knowledge in relation to Aboriginal or Torres Strait
Islander societies.
Engagements to be in writing
(3) An engagement under subsection (1) must be made:
(a) on behalf of the Commonwealth; and
(b) by written agreement.
Consultant subject to President’s direction
(4) A consultant engaged under subsection (1) is subject to directions
given by the President under subsection 123(1).
Note 1: The heading to section 132 is replaced by the
heading “Registrar may engage consultants”.
Note 2: The heading to subsection 132(1) is
omitted.
Consultant to disclose conflict of interest
(1) A person engaged under subsection 131A(1) as a consultant in relation
to any assistance or mediation being provided by the Tribunal who has a conflict
of interest in relation to the assistance or mediation must disclose the matters
giving rise to that conflict to:
(a) the President of the Tribunal; and
(b) the persons to whom the Tribunal is providing the assistance or
mediation.
Requirement for consent
(2) The person must not perform his or her duties as a consultant in
relation to the assistance or mediation unless the President and the persons to
whom the Tribunal is providing the assistance or mediation consent.
Meaning of conflict of interest
(3) For the purposes of this section, a person engaged under subsection
131A(1) as a consultant in relation to any assistance or mediation being
provided by the Tribunal has a conflict of interest in relation to the
assistance or mediation if the person has any interest, pecuniary or otherwise,
that could conflict with the proper performance of his or her duties as a
consultant in relation to the assistance or mediation.
Conflict of interest at a particular time
(4) Without limiting subsection (3), a person engaged under subsection
131A(1) as a consultant in relation to any assistance or mediation being
provided by the Tribunal has a conflict of interest at a particular time in
relation to the assistance or mediation if:
(a) at that time, the person is employed by, or engaged as a consultant
to, an organisation that has an interest in the matter in relation to which the
assistance or mediation is being provided; or
(b) at any time in the 12 months immediately before that time, the person
was so employed or engaged.
34 After section 136
Insert:
President to direct conference to be held
(1) If the Federal Court refers the whole or a part of a proceeding to the
Tribunal under section 86B for mediation, the Tribunal may hold such conferences
of the parties or their representatives as the Tribunal considers will help in
resolving the matter.
Member must preside
(2) A conference must be presided over by a member of the
Tribunal.
Assistance for presiding member
(3) The member presiding at a conference may be assisted by another member
of the Tribunal or by a member of the staff of the Tribunal.
Statements at conference are without prejudice
(4) In a proceeding before the Court, unless the parties otherwise agree,
evidence may not be given, and statements may not be made, concerning any word
spoken or act done at a conference.
Member not to take further part in relation to a
proceeding
(5) Unless the parties otherwise agree, a member who presides over, or
assists at, a conference in relation to a proceeding may not, in any other
capacity, take any further part in the proceeding.
Participation by telephone etc.
(6) The presiding member may allow a person to participate by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
Division applies as if consultant were a member
(7) If a consultant is engaged under subsection 131A(1) to conduct
mediation in relation to a particular matter under this Division, this Division
applies in relation to that matter as if the consultant were a member of the
Tribunal.
Limiting parties at conferences
(1) The presiding member may direct that only one or some of the parties
may attend, and be represented, at a conference.
Excluding parties from conferences
(2) If the presiding member considers that:
(a) a party, or a party’s representative, at a conference is
disrupting or hindering the conference; or
(b) excluding a party, or a party’s representative, from a
conference would help to resolve matters;
the member may direct that the party or representative not attend at that
conference or at other conferences.
Parties may be represented
(3) A party may be represented by a barrister, a solicitor or another
person.
The presiding member may, with the consent of all of the parties present
at a conference:
(a) direct that other persons be permitted to attend as observers of the
conference; or
(b) if he or she considers it would assist the parties to reach agreement
on any of the matters mentioned in subsection 86A(1) or (2)—direct that
other persons be permitted to participate in the conference.
Reference of questions to Federal Court
(1) Subject to subsections (2) and (3), if the presiding member considers
that it would expedite the reaching of an agreement on any matter that is the
subject of mediation, he or she may refer to the Federal Court a question of
fact or law relating to a proceeding that arises during the mediation.
Note: Under subsection 86D(1), the Federal Court may
determine a question of fact or law that the NNTT refers to it.
Presiding member not a consultant
(2) If the presiding member is not a consultant engaged under subsection
131A(1), the question may only be referred to the Court under subsection (1) of
this section:
(a) on the initiative of the presiding member; or
(b) at the request of a party, if the presiding member agrees.
Presiding member a consultant
(3) If the presiding member is a consultant engaged under subsection
131A(1), the question may only be referred to the Court under subsection (1) of
this section:
(a) on the initiative of the presiding member, if a presidential member
agrees; or
(b) at the request of a party, if both the presiding member and a
presidential member agree.
Mediation may continue
(4) If a question of fact or law arising during mediation has been
referred to the Court under this section, the presiding member may continue
mediation if he or she considers that it is appropriate.
A conference must be held in private, unless the member presiding directs
otherwise and no party objects.
Power of presiding member
(1) The presiding member may direct that:
(a) any information given, or statements made, at a conference;
or
(b) the contents of any document produced at a conference;
must not be disclosed, or must not be disclosed except in such manner, and
to such persons, as the presiding member specifies.
Applications etc.
(2) The presiding member may make the direction on his or her own
initiative or on an application by a party.
Presiding member may disclose if parties agree
(3) If the parties agree, the presiding member may, despite the direction,
disclose things of the kind mentioned in paragraph (1)(a) or (b).
Report after mediation concludes
(1) The presiding member must, as soon as practicable after mediation is
successfully concluded, provide a written report to the Federal Court setting
out the results of the mediation.
Report requested under section 86E
(2) The presiding member must provide a written report to the Federal
Court setting out the progress of the mediation if requested to do so under
section 86E.
Report to assist the Court
(3) The presiding member may provide a written report to the Federal Court
setting out the progress of the mediation if the presiding member considers that
it would assist the Federal Court in progressing the proceeding in relation to
which the mediation is being undertaken.
Agreement on facts
(4) If the parties agree, any report under this section must include any
agreement on facts between the parties that was reached during the mediation
concerned.
(1) The regulations may make provision in relation to the way in
which:
(a) any assistance is to be provided by the NNTT under any provision of
this Act; or
(b) any mediation, that the NNTT is requested to provide, is to be
provided under any provision of this Act.
Regulations must be consistent with this Act
(2) Such regulations must not be inconsistent with Division 4A or any
other provision of this Act.
35 Paragraph 139(a)
Repeal the paragraph.
36 At the end of section
139
Add:
; or (d) if a person has made an objection against registration of an
indigenous land use agreement as mentioned in paragraph 24DL(2)(c) and not
withdrawn the objection—whether the person satisfies the Tribunal that it
would not be fair and reasonable to register the agreement having regard to the
matters mentioned in that paragraph.
37 Section 140
Omit “or application”, substitute “, application or
objection”.
38 Subsection 141(1)
Repeal the subsection.
39 At the end of section
141
Add:
Registration of indigenous land use agreements
(4) The parties to an inquiry into whether a person satisfies the Tribunal
that it would not be fair and reasonable to register an indigenous land use
agreement are:
(a) the person; and
(b) the parties to the agreement; and
(c) any other person who satisfies the Tribunal that his or her interests
are affected by the agreement.
40 Section 148
Repeal the section.
41 At the end of section
151
Add:
Determinations “on the papers”
(2) The Tribunal may:
(a) decide for the purposes of paragraph 24DL(2)(c) whether it would be
fair and reasonable to register an agreement; or
(b) make a determination in relation to a right to negotiate
application;
by considering, without holding a hearing, the documents or other material
lodged with or provided to the Tribunal. However, the Tribunal must hold a
hearing if it appears to the Tribunal that the issues for determination cannot
be adequately determined in the absence of the parties.
42 Subsection 154(1)
Omit “an inquiry”, substitute “a
hearing”.
Note 1: The heading to section 154 is altered by omitting
“Inquiries” and substituting
“Hearings”.
Note 2: The heading to subsection 154(1) is altered by
omitting “inquiries” and substituting
“hearings”.
43 Subsection 154(3)
Omit “an inquiry, or part of an inquiry,”, substitute “a
hearing, or part of a hearing,”.
Note: The heading to subsection 154(3) is altered by
omitting “inquiries” and substituting
“hearings”.
44 Subsection 154(4)
Omit “an inquiry or part of an inquiry”, substitute “a
hearing or part of a hearing”.
45 Sections 160, 161 and
165
Repeal the sections.
46 Subdivision E of Division 5 of Part
6
Repeal the Subdivision.
47 Subsections 169(2) and
(3)
Repeal the subsections, substitute:
Appeal from Tribunal decision—indigenous land use agreement
registration
(2) A party to an inquiry relating to registration of an indigenous land
use agreement before the Tribunal may appeal to the Federal Court, on a question
of law, from any decision of the Tribunal in that proceeding.
Note: The heading to subsection 169(1) is altered by
omitting “the”.
48 Section 176
After “section 92”, insert “, 136F”.
49 Paragraph 177(a)
Omit “or a member”, substitute “, a member or a
consultant engaged under subsection 131A(1)”.
50 Section 178
Omit “a determination of the Tribunal is lodged with the Federal
Court under section 166,”.
51 After subsection 180(1)
Insert:
Protection of consultants
(1A) A person engaged under subsection 131A(1) as a consultant has, in
performing duties under the engagement, the same protection and immunity as a
Justice of the High Court.
52 Section 181
Repeal the section, substitute:
Persons to whom section applies
(1) This section applies to a person who is a member or officer of the
Tribunal or a consultant engaged under subsection 131A(1).
Persons not competent etc. to give evidence
(2) A person to whom this section applies is not competent, and must not
be required, to give evidence to a court relating to a matter if:
(a) the giving of the evidence would be contrary to a direction of the
Tribunal in force under section 155 or to a direction of the presiding member
under subsection 136F(1); or
(b) an application has been made to the Tribunal for a direction under
section 155, or to the presiding member for a direction under section 136F,
concerning the matter to which the evidence would relate and the Tribunal or the
presiding member has not determined that application.
Persons not required to produce documents
(3) A person to whom this section applies must not be required to produce
in a court a document given to the Tribunal in connection with a proceeding
if:
(a) the production of the document would be contrary to a direction of the
Tribunal in force under section 155 or to a direction of the presiding member
under subsection 136F(1); or
(b) an application has been made to the Tribunal for a direction under
section 155, or to the presiding member for a direction under section 136F, in
relation to the document and the Tribunal or the presiding member has not
determined that application.
Persons not required to give evidence
(4) A person to whom this section applies must not be required to give
evidence to a court in relation to any proceedings before the Tribunal or any
mediation required under subsection 31(3).
Definitions
(5) In this section:
court includes any tribunal, authority or person having power
to require the production of documents or the answering of questions.
produce includes permit access to.
53 Section 183
Repeal the section, substitute:
Assistance in relation to inquiries etc.
(1) A person who is a party, or who intends to apply to be a party, to an
inquiry, mediation or proceeding related to native title may apply to the
Attorney-General for the provision of assistance under this section in relation
to the inquiry, mediation or proceeding.
Assistance in relation to agreements and disputes
(2) A person who:
(a) is or intends to become a party to an indigenous land use agreement or
an agreement about rights conferred under subsection 44B(1); or
(b) is in dispute with any other person about rights conferred under
subsection 44B(1);
may apply to the Attorney-General for the provision of assistance under
this section in relation to:
(c) negotiating the agreement; or
(d) any inquiry, mediation or proceeding in relation to the agreement;
or
(e) resolving the dispute.
Attorney-General may grant assistance
(3) If the Attorney-General is satisfied that:
(a) the applicant is not eligible to receive assistance in relation to the
matter concerned from any other source (including from a representative
Aboriginal/Torres Strait Islander body); and
(b) the provision of assistance to the applicant in relation to the matter
concerned is in accordance with the guidelines (if any) determined under
subsection (4); and
(c) in all the circumstances, it is reasonable that the application be
granted;
the Attorney-General may authorise the provision by the Commonwealth to the
applicant, either unconditionally or subject to such conditions as the
Attorney-General determines, of such legal or financial assistance as the
Attorney-General determines.
Attorney-General may determine guidelines
(4) The Attorney-General may, in writing, determine guidelines that are to
be applied in authorising the provision of assistance under this
section.
Assistance not to be provided to Ministers
(5) The Attorney-General cannot authorise the provision of assistance
under this section to the Commonwealth Minister, a State Minister or a Territory
Minister.
Assistance not to be provided to native title claimants
etc.
(6) The Attorney-General must not authorise the provision of assistance
under this section to a person in relation to:
(a) any claim by the person, in an inquiry, mediation or proceeding, to
hold native title or to be entitled to compensation in relation to native title;
or
(b) an indigenous land use agreement, if the person holds or claims to
hold native title in relation to the area covered by the agreement; or
(c) an agreement or dispute about rights conferred under subsection
44B(1), if the person is included in the native title claim group
concerned.
Delegation by Attorney-General
(7) The Attorney-General may, in writing, delegate any or all of his or
her powers under subsection (3) to:
(a) the Secretary of the Department; or
(b) a person engaged under the Public Service Act 1997 who occupies
a specified position in the Department.
54 Section 184
Omit “given to the Registrar, or”, substitute “filed in
the Federal Court, or given”.
55 Subsection 185(2)
Before “Registrar”, insert “Native
Title”.
56 Subsection 186(1)
After “each claim”, insert “covered by subsection
190(1)”.
57 Paragraph 186(1)(a)
Omit “lodged with the Registrar or”, substitute “filed in
the Federal Court or lodged with”.
58 Paragraph 186(1)(c)
After “was”, insert “filed or”.
59 After paragraph
186(1)(c)
Insert:
(ca) the date on which the claim is entered on the Register;
60 Paragraph 186(1)(d)
Omit “person who is taken to be the claimant”, substitute
“applicant”.
61 At the end of subsection
188(1)
Add:
Note: Such information must not be made available to the
public: see subsection 98A(2).
62 Subsection 188(2)
Repeal the subsection.
63 Sections 189 and 190
Repeal the sections, substitute:
The Senior Registrar of the High Court must, as soon as is practicable,
notify the Registrar of the details of any decision or determination made by the
High Court that covers a claim.
The Registrar of the Federal Court must, as soon as practicable, notify
the Native Title Registrar of:
(a) the withdrawal of an application that contains a claim (whether or not
covered by an entry on the Register); and
(b) the details of any decision or determination of the Federal Court that
covers a claim (whether or not covered by an entry on the Register).
Registrar to include claims
(1) The Native Title Registrar must, as soon as practicable, include in
the Register:
(a) details of any claims accepted for registration by the Registrar under
section 190A; and
(b) details of any claims that have been found to satisfy conditions
equivalent to those set out in sections 190B and 190C, being claims of which the
Registrar is notified by a recognised State/Territory body.
Amending Register after amendment of claims: recognised
bodies
(2) If a recognised State/Territory body notifies the Registrar of an
amendment of an application containing a claim that is on the Register, the
Registrar must, as soon as practicable:
(a) if the claim as set out in the amended application has been found to
satisfy conditions equivalent to those set out in sections 190B and
190C—amend the Register to reflect the amendment; or
(b) if the claim as set out in the amended application has been found not
to satisfy conditions equivalent to those set out in sections 190B and
190C—amend the Register to remove any entry relating to the
claim.
Amending Register after amendment of claims: other cases
(3) If the Registrar is given a copy of an amended application under
subsection 64(4) that contains a claim or amends a claim, the Registrar must, as
soon as practicable:
(a) if the claim is accepted for registration under section
190A—amend the Register to reflect the amendment; or
(b) if the claim is not accepted for registration under section
190A—amend the Register to remove any entry relating to the
claim.
Entries removed or amended after determination, decision or
withdrawal
(4) If:
(a) the Registrar is notified under section 189 or 189A of a decision or
determination covering a claim; or
(b) the Registrar is notified by a recognised State/Territory body of a
decision or determination covering a claim; or
(c) the Registrar is notified that an application that contained a claim
has been withdrawn;
the Registrar must, as soon as practicable:
(d) if the application in question has been withdrawn, dismissed or
otherwise finalised—remove the entry on the Register that relates to the
claim; or
(e) in any other case—amend the entry on the Register that relates
to the claim so that it only relates to the matters in relation to which the
application has not been finalised.
Note: If an application has been finalised in relation to
part of the area claimed, the Register would be amended to remove references to
that area. If the application has been finalised by an approved determination of
native title, that determination would be entered on the National Native Title
Register.
Claims made to Federal Court
(1) If the Registrar is given a copy of a claimant application under
section 63 or subsection 64(4), the Registrar must, in accordance with this
section, consider the claim made in the application.
Effect of section 29 notice
(2) If, either before the Registrar begins to do so or while he or she is
doing so, a notice is given under section 29 in relation to an act affecting any
of the land or waters in the area covered by the application, the Registrar must
use his or her best endeavours to finish considering the claim by the end of 3
months after the notification day specified in the notice.
Information to be considered
(3) In considering a claim under this section, the Registrar must have
regard to:
(a) information contained in the application and in any accompanying
documents; and
(b) any information obtained by the Registrar as a result of any searches
conducted by the Registrar of registers of interests in relation to land or
waters maintained by the Commonwealth, a State or a Territory; and
(c) to the extent that it is reasonably practicable to do so in the
circumstances—any information supplied by the Commonwealth, a State or a
Territory, that, in the Registrar’s opinion, is relevant to whether any
one or more of the conditions set out in section 190B or 190C are satisfied in
relation to the claim;
and may have regard to such other information as he or she considers
appropriate.
Information about other rights and interests
(4) Without limiting subsection (3), information mentioned in that
subsection may include information about current or previous non-native title
rights and interests in, or in relation to, the land or waters in the area
covered by the application.
Effect of paragraph (3)(b)
(5) The fact that no information of the kind referred to in paragraph
(3)(b) has been supplied at a particular time does not prevent the Registrar
accepting a claim for registration under this section.
Notification about amending application
(5A) Before the Registrar has decided whether or not to accept the claim
for registration, he or she may notify the applicant that the application may be
amended under the Federal Court Rules.
Test for registration
(6) The Registrar must accept the claim for registration if the claim
satisfies all of the conditions in:
(a) section 190B (which deals mainly with the merits of the claim);
and
(b) section 190C (which deals with procedural and other
matters).
In any other case, the Registrar must not accept the claim for
registration.
Note: The fact that the Registrar is considering the claim
under this section does not mean that the application cannot be amended: see
subsection 64(3).
Effect of withdrawal etc. of application
(7) If:
(a) before the Registrar has decided whether or not to accept the claim
for registration; or
(b) after the Registrar has decided to accept the claim for registration
but before the Registrar has included details of the claim in the Register of
Native Title Claims;
the Registrar is notified under section 189 or 189A of a decision or
determination to the effect that the application has been dismissed or otherwise
finalised, or is notified that the application has been withdrawn, the Registrar
must not:
(c) decide whether or not to accept the claim for registration;
or
(d) enter the details in the Register;
as the case requires.
(1) This section contains the conditions mentioned in paragraph
190A(6)(a).
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 described in
the application as required by paragraph 62(2)(e) is sufficient to support the
assertion that the native title rights and interests claimed exist.
Prima facie case
(6) The Registrar must consider that, prima facie, each of the native
title rights and interests claimed in the application can be
established.
Physical connection
(7) The Registrar must be satisfied that at least one member of the native
title claim group currently has or previously had a traditional physical
connection with the area covered by the application.
No failure to comply with section 61A
(8) The application and accompanying documents must not disclose, and the
Registrar must not otherwise be aware, that, because of section 61A (which
forbids the making of applications where there have been previous native title
determinations or exclusive or non-exclusive possession acts), the application
should not have been made.
Claimed native title not to involve mineral rights or certain offshore
place rights
(9) The application and accompanying documents must not disclose, and the
Registrar must not otherwise be aware, that:
(a) to the extent that the native title rights and interests claimed
consist of or include ownership of minerals, petroleum or gas—the Crown in
right of the Commonwealth, a State or a Territory owns the minerals, petroleum
or gas; or
(b) to the extent that the native title rights and interests claimed
relate to waters in an offshore place—those rights and interests purport
to exclude all other rights and interests in relation to the whole or part of
the offshore place.
No other extinguishment of claimed native title
(10) The application and accompanying documents must not disclose, and the
Registrar must not otherwise be aware, that the native title rights and
interests claimed have otherwise been extinguished.
(1) This section contains the conditions mentioned in paragraph
190A(6)(b).
Information etc. required by sections 61 and 62
(2) The Registrar must be satisfied that the application contains all
details and other information, and is accompanied by any affidavit or other
document, required by sections 61 and 62.
No previous overlapping claim groups
(3) The Registrar must be satisfied that no person included in the native
title claim group for the application (the current application)
was a member of the native title claim group for any previous application,
if:
(a) the previous application covered the whole or part of the area covered
by the current application; and
(b) an entry relating to the claim in the previous application was on the
Register of Native Title Claims when the current application was made;
and
(c) the entry was made, or not removed, as a result of consideration of
the previous application under section 190A.
Identity of claimed native title holders
(4) The Registrar must be satisfied that either of the following is the
case:
(a) the application has been certified under paragraph 202(4)(d) by each
representative Aboriginal/Torres Strait Islander body that could certify the
application in performing its functions under that Part; or
(b) the applicant is a member of the native title claim group and is
authorised to make the application, and deal with matters arising in relation to
it, by all the other persons in the native title claim group.
Note: The word authorise is defined in section
251B.
Requirements for uncertified applications
(5) If the application has not been certified as mentioned in paragraph
(4)(a), the Registrar cannot be satisfied that the condition in subsection (4)
has been satisfied unless the application:
(a) includes a statement to the effect that the requirement set out in
paragraph (4)(b) has been met; and
(b) briefly sets out the grounds on which the Registrar should consider
that it has been met.
Overlapping representative body areas
(6) Paragraph (4)(a) does not require certification by a particular
representative Aboriginal/Torres Strait Islander body that could certify the
application in performing its functions if:
(a) the application has been certified under paragraph 202(4)(d) by
another representative Aboriginal Torres/Strait Islander body whose area
includes all of the area of land or waters, to which the application relates,
that is within the first-mentioned body’s area; or
(b) the application has been certified under paragraph 202(4)(d) by 2 or
more other representative Aboriginal/Torres Strait Islander bodies whose areas,
when combined, include all of the area of land or waters, to which the
application relates, that is within the first-mentioned body’s
area.
Definition of area
(7) In subsection (6):
area, in relation to a representative Aboriginal/Torres
Strait Islander body, means the area in relation to which the body has been
determined under section 202 to be a representative Aboriginal/Torres Strait
Islander body.
(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.
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).
64 Section 191
After “Registrar may”, insert “, if the State or
Territory concerned agrees,”.
65 Subsection 192(2)
Before “Registrar”, insert “Native
Title”.
66 Paragraph 193(1)(a)
Omit “the NNTT,”.
67 Paragraph 193(2)(d)
Repeal the paragraph, substitute:
(d) the matters determined, including:
(i) whether or not native title exists in relation to the land or waters
covered by the determination; and
(ii) if it exists—who the common law holders of the native title
are; and
(iii) in the case of an approved determination of native title by the
Federal Court, where the determination is that native title exists—the
name and address of any prescribed body corporate that holds the native title
rights and interests concerned on trust or that is determined under section 57
in relation to the native title; and
(iv) in the case of an approved determination of native title by a
recognised State/Territory body, where the determination is that native title
exists—the name and address of any body corporate that holds the native
title rights and interests concerned on trust or that is determined in relation
to the native title under a provision of a law of the State or Territory
concerned that corresponds to section 57.
68 Section 196
Repeal the section.
69 Subsection 200(1)
Omit all the words before “Commonwealth”, substitute
“The”.
70 Paragraph 200(1)(a)
After “Part 2”, insert “or of the kind mentioned in
section 45”.
71 After Part 12
Insert:
Equivalent bodies
(1) This section applies if the State Minister for a State, or the
Territory Minister for a Territory, nominates to the Commonwealth Minister one
or more offices, tribunals or bodies (each of which is an equivalent
body), established by or under a law of the State or Territory, for the
purpose of each performing specified functions or exercising specified powers of
the NNTT or the Native Title Registrar, in specified circumstances, under
specified equivalent body provisions (see subsection (9)).
Different functions/powers etc.
(2) To avoid doubt, the nomination may specify:
(a) different functions or powers in relation to different equivalent
bodies; or
(b) different functions or powers in different circumstances.
Determination
(3) The Commonwealth Minister may, in writing, determine that the one or
more equivalent bodies are to perform the specified functions or exercise the
specified powers in the specified circumstances, under the specified equivalent
body provisions.
Criteria to be satisfied
(4) In order to ensure that there is a nationally consistent approach to
the recognition and protection of native title, the Commonwealth Minister must
not make the determination unless the Commonwealth Minister is satisfied
that:
(a) the one or more equivalent bodies will have available to them, through
the bodies’ membership, appropriate expertise (including expertise in
matters relating to Aboriginal peoples and Torres Strait Islanders) for
performing their functions or exercising their powers under the determination;
and
(b) under the law of the State or Territory, the procedures of the one or
more equivalent bodies in performing those functions or exercising those powers
will be fair, just, informal, accessible and expeditious; and
(c) the one or more equivalent bodies will have adequate resources to
enable them to perform those functions or exercise those powers; and
(d) the law of the State or Territory will enable and require the one or
more equivalent bodies to perform those functions or exercise those powers if
the Commonwealth Minister makes the determination; and
(e) if any of the functions or powers that the one or more equivalent
bodies will perform or exercise under the determination involves the maintenance
of any register under this Act—the law of the State or Territory will
require the functions to be performed or the powers to be exercised in a way
that ensures that the register will be maintained in a nationally integrated and
accessible manner; and
(f) if:
(i) any of the functions or powers that will be performed or exercised
under the determination will be performed or exercised by an equivalent body
that consists of more than one person; and
(ii) the Commonwealth Minister considers it appropriate that a member of
the NNTT should be a member of the equivalent body;
the law of the State or Territory will require a member of the NNTT to be
a member of the equivalent body; and
(g) any other requirement that the Commonwealth Minister considers
relevant will be satisfied.
Modified application of Act etc.
(5) While the determination is in force, this Act, and Schedule 5 to the
Native Title Amendment Act 1997, have effect, in relation to a function
or power of the NNTT or Native Title Registrar specified in the determination,
as if, in the specified circumstances:
(a) the one or more equivalent bodies had the functions or powers, instead
of the NNTT or the Registrar; and
(b) if one of the powers specified in the determination is the power to
make determinations under Subdivision P of Division 3 of Part 2 of this
Act—for the purposes of sections 34A, 36A, 36B, 36C and 42 of this Act,
the State Minister or the Territory Minister of the relevant State or Territory
had the powers of the Commonwealth Minister under that section, instead of the
Commonwealth Minister.
Vesting of functions and powers in equivalent bodies
(6) While the determination is in force, the functions and powers
specified in the determination are vested in the one or more equivalent bodies,
in the circumstances set out in the determination.
Revocation of determination
(7) If, at any time:
(a) the law of the State or Territory is amended; and
(b) as a result, the Commonwealth Minister ceases to be satisfied as
mentioned in subsection (4) in relation to any or all of the equivalent
bodies;
he or she must:
(c) advise the State Minister or the Territory Minister concerned in
writing of the fact; and
(d) if at the end of 90 days, or such longer period as the Commonwealth
Minister allows, after doing so, the Commonwealth Minister is still not
satisfied as mentioned in subsection (4)—in writing, revoke the
determination.
Regulations to make transitional provisions
(8) The regulations may prescribe any modifications of this Act that are
necessary or convenient to deal with transitional matters arising from the
making or revocation of determinations under this section.
Equivalent body provisions
(9) The equivalent body provisions are:
(a) all of the provisions of this Act, except the following:
(i) this section;
(ii) Part 5;
(iii) the provisions of Part 6, other than subsection 136D(1) and sections
139, 145, 169, 178 and 179; and
(b) Schedule 5 to the Native Title Amendment Act 1997.
72 Subsection 209(1)
Omit “Aboriginal and Torres Strait Islander Social Justice
Commissioner (appointed under the Human Rights and Equal Opportunity
Commission Act 1986)”, substitute “Human Rights and Equal
Opportunity Commission”.
Note: The heading to section 209 is altered by omitting
“by Aboriginal and Torres Strait Islander Social Justice
Commissioner”, and substituting “on matters related to the
Act”.
73 Subsection 209(2)
Omit “Commissioner”, substitute
“Commission”.
74 At the end of section
209
Add:
Commissioner to prepare and submit reports
(3) The preparation and submission of reports under subsections (1) and
(2) is to be carried out by the Aboriginal and Torres Strait Islander Social
Justice Commissioner (appointed under the Human Rights and Equal Opportunity
Commission Act 1986) on behalf of the Commission.
Commonwealth Minister must table reports
(4) The Commonwealth Minister must cause a copy of each report received by
the Minister under subsection (1) or (2) to be laid before each House of the
Parliament within 15 sitting days of that House after the report is received by
the Minister.
75 After paragraph
215(2)(a)
Insert:
(aa) the regulations may make provision:
(i) prescribing fees to be paid to obtain access to, or information from,
records or information kept by the Native Title Registrar as mentioned in
section 98A; and
(ii) for or in relation to the waiver or refund, in whole or part, of such
fees; and
76 Subparagraph
215(2)(b)(i)
Before “Registrar”, insert “Native
Title”.
77 After subparagraph
215(2)(b)(i)
Insert:
(ia) the waiver, in whole or in part, of those fees; and
78 Section 222 (table)
Repeal the table, substitute:
|
List of Definitions |
|
|---|---|
|
Expression |
Section |
|
Aboriginal peoples |
253 |
|
Aboriginal/Torres Strait Islander land or waters |
253 |
|
act |
226 |
|
act attracting the expedited procedure |
237 |
|
affect |
227 |
|
agricultural lease |
247 |
|
applicant |
253 |
|
approved determination of native title |
253 |
|
arbitral body |
253 |
|
assessor |
253 |
|
attributable |
239 |
|
authorise |
253 |
|
category A intermediate period act |
232B |
|
category A past act |
229 |
|
category B intermediate period act |
232C |
|
category B past act |
230 |
|
category C intermediate period act |
232D |
|
category C past act |
231 |
|
category D intermediate period act |
232E |
|
category D past act |
232 |
|
Chief Justice |
253 |
|
claimant application |
253 |
|
coastal sea |
253 |
|
commercial lease |
246 |
|
common law holders |
253 |
|
Commonwealth Minister |
253 |
|
community purposes lease |
249A |
|
determination of native title |
225 |
|
exclusive agricultural lease |
247A |
|
exclusive pastoral lease |
248A |
|
explore |
253 |
|
extinguish |
237A |
|
Federal Court |
253 |
|
forest operations |
253 |
|
former judge |
253 |
|
future act |
233 |
|
Government party |
253 |
|
grantee party |
253 |
|
horticulture |
253 |
|
indigenous land use agreement |
253 |
|
infrastructure facility |
253 |
|
interest |
253 |
|
intermediate period act |
232A |
|
Judge |
253 |
|
jurisdictional limits |
253 |
|
land |
253 |
|
land or waters on which a public work is constructed, established or
situated |
251D |
|
lease |
242 |
|
lessee |
243 |
|
major earthworks |
253 |
|
member |
253 |
|
mine |
253 |
|
mining lease |
245 |
|
National Native Title Register |
253 |
|
National Native Title Tribunal |
253 |
|
native title |
223 |
|
native title claim group |
253 |
|
native title group |
24CD, 24DE |
|
native title holder |
224 |
|
native title party |
253 |
|
Native Title Registrar |
253 |
|
native title rights and interests |
223 |
|
negotiation party |
253 |
|
NNTT |
253 |
|
non-claimant application |
253 |
|
non-exclusive agricultural lease |
247B |
|
non-exclusive pastoral lease |
248B |
|
non-extinguishment principle |
238 |
|
non-presidential member |
253 |
|
notify the public in the determined way |
252 |
|
offshore place |
253 |
|
onshore place |
253 |
|
ordinary title |
253 |
|
paragraph 51(xxxi) acquisition of property |
253 |
|
paragraph 51(xxxi) just terms |
253 |
|
past act |
228 |
|
pastoral lease |
248 |
|
permit |
244 |
|
perpetual lease |
249B |
|
prescribed |
253 |
|
President |
253 |
|
presidential member |
253 |
|
previous exclusive possession act |
23B |
|
previous non-exclusive possession act |
23F |
|
primary production activity |
24GA |
|
procedural right |
253 |
|
public work |
253 |
|
recognised State/Territory body |
253 |
|
Register of Indigenous Land Use Agreements |
253 |
|
Register of Native Title Claims |
253 |
|
registered native title body corporate |
253 |
|
registered native title claimant |
253 |
|
Registrar |
253 |
|
representative Aboriginal/Torres Strait Islander body |
253 |
|
representative body |
253 |
|
residential lease |
249 |
|
right to negotiate application |
253 |
|
Scheduled interest |
249C |
|
similar compensable interest test |
240 |
|
special matter |
253 |
|
State Minister |
253 |
|
statutory authority |
253 |
|
subject to section 24FA protection |
253 |
|
Territory Minister |
253 |
|
Torres Strait Islander |
253 |
|
town or city |
251C |
|
traditional activity |
44A |
|
Tribunal |
253 |
|
valid |
253 |
|
waters |
253 |
79 Section 225
Repeal the section, substitute:
A determination of native title is a determination whether
or not native title exists in relation to a particular area (the
determination area) of land or waters and, if it does exist, a
determination of:
(a) who the persons, or each group of persons, holding the common or group
rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in
relation to the determination area; and
(c) the nature and extent of any other interests in relation to the
determination area; and
(d) the relationship between the rights and interests in paragraphs (b)
and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are
not covered by a non-exclusive agricultural lease or a non-exclusive pastoral
lease—whether the native title rights and interests confer possession,
occupation, use and enjoyment of that land or waters on the native title holders
to the exclusion of all others.
Note: The determination may deal with the matters in
paragraphs (c) and (d) by referring to a particular kind or particular kinds of
non-native title interests.
80 Subsection 226(2)
Omit “Subject to subsection (4), act
includes”, substitute “An act
includes”.
81 Subsection 226(3)
Omit “Subject to subsection (4), an”, substitute
“An”.
82 Subparagraph
251(2)(a)(ii)
Omit “and”.
83 Subparagraph
251(2)(a)(iii)
Repeal the subparagraph.
85 After paragraph
251(2)(a)
Insert:
(aa) any procedures under the law of the State or Territory for
determinations whether acts affecting native title may be done will be
consistent with those set out in this Act; and
(ab) the law of the State or Territory will require a decision to be made
whether a claim in respect of native title satisfies conditions equivalent to
those set out in sections 190B and 190C; and
86 Paragraph 251(2)(g)
Repeal the paragraph.
87 After subparagraph
251(2)(i)(i)
Insert:
(ia) any claims contained in any such applications (including amended
applications) that have been found to satisfy conditions equivalent to those set
out in sections 190B and 190C; and
(ib) any amendments of applications covered by subparagraph (ia), if the
claims contained in the application as amended have been found not to satisfy
conditions equivalent to those set out in sections 190B and 190C; and
(ic) any withdrawal or dismissal of applications covered by subparagraph
(i); and
88 Paragraph 251(4)(b)
After “90 days”, insert “, or such longer period as the
Commonwealth Minister allows,”.
89 Subsection 251(6)
Omit “Division 1 of Part 4”, substitute “Division 1A of
Part 4”.
90 Section 251
After amending the section in accordance with this Schedule, move the
section to new Part 12A (so that it appears immediately after the heading to
that Part) and re-number the section as 207A.
91 Section 253 (paragraph (c) of the definition
of Aboriginal/Torres Strait Islander land or waters)
After “law”, insert “, or part of a
law,”.
92 Section 253
Insert:
applicant has a meaning affected by subsection
61(2).
93 Section 253
Insert:
claimant application means a native title determination
application that a native title claim group has authorised to be made, and,
unless the contrary intention appears, includes such an application that has
been amended.
94 Section 253 (definition of land, after
the note)
Insert:
Note 2: Because of the definition of waters,
the area between high water and low water will not be included in
land.
95 Section 253
Insert:
native title claim group means:
(a) in relation to a claim in an application for a determination of native
title made to the Federal Court—the native title claim group mentioned in
relation to the application in the table in subsection 61(1); or
(b) in relation to a claim in an application for an approved determination
of native title made to a recognised State/Territory body—the person or
persons making the claim, or on whose behalf the claim is made.
96 Section 253 (definition of non-claimant
application)
Repeal the definition, substitute:
non-claimant application means a native title determination
application that is not a claimant application.
97 Section 253 (definition of recognised
State/Territory body)
Omit “section 251”, substitute “section
207A”.
98 Section 253 (definition of registered
native title body corporate)
Repeal the definition, substitute:
registered native title body corporate means:
(a) a prescribed body corporate whose name and address are registered on
the National Native Title Register under subparagraph 193(2)(d)(iii);
or
(b) a body corporate whose name and address are registered on the National
Native Title Register under subparagraph 193(2)(d)(iv).
99 Section 253 (definition of registered
native title claimant)
Repeal the definition, substitute:
registered native title claimant, in relation to land or
waters, means a person or persons whose name or names appear in an entry on the
Register of Native Title Claims as the applicant in relation to a claim to hold
native title in relation to the land or waters.
100 Section 253 (definition of unopposed
application)
Repeal the definition.
101 Section 253 (at the end of the definition of
waters)
Add:
; or (c) the shore, or subsoil under or airspace over the shore, between
high water and low water.
Part
2—Federal Court of Australia
Act 1976
102 After subsection
18AB(2)
Insert:
(2A) The Judges, or a majority of them, may also make Rules of Court
delegating to the Judicial Registrars all or any of the following powers of the
Court:
(a) to determine parties to proceedings under the Native Title Act
1993;
(b) to make orders under sections 86D and 87 of that Act.
103 Subsections 18AB(3), (6) and
(7)
After “subsection (1)” (wherever occurring), insert “or
(2A)”.
Part
3—Human Rights and Equal
Opportunity Commission Act 1986
104 At the end of subsection
46C(1)
Add:
Note: Functions are also conferred on the Commission under
section 209 of the Native Title Act 1993.
1 Before section 202
Insert:
In this Part, unless the contrary intention appears:
director, in relation to a representative body, means a
member of the governing body of the representative body.
executive officer, in relation to a representative body,
means:
(a) a director of the representative body; or
(b) any other person who is concerned in, or takes part in, the management
of the representative body at a senior level.
exempt State body means a body established by a law of a
State that confers functions or powers on the body to be performed or exercised
in its capacity as a body representing the interests of, or acting on behalf of,
Aboriginal peoples or Torres Strait Islanders.
functions, in relation to a representative body, means the
functions conferred on the body by this Act and includes the obligations imposed
on the body by this Act, whether or not any of those functions or obligations
are also conferred or imposed on the body under a law of a State or
Territory.
governing body, in relation to a representative body, means
the group of persons (by whatever name called) who are responsible for the
executive decisions of the representative body.
powers, in relation to a representative body, means the
powers conferred on the body by this Act, whether or not any of those powers are
also conferred on the body under a law of a State or Territory.
transition period means the period:
(a) beginning on the day on which Division 2 commences; and
(b) ending immediately before Division 3 commences.
(1) For the purposes of this Part, an eligible body
is:
(a) a body corporate, incorporated under Part IV of the Aboriginal
Councils and Associations Act 1976, the objects of which enable the body to
perform the functions of a representative body under Division 3 of this Part;
or
(b) a body corporate that is a representative body at the commencement of
this section; or
(c) a body corporate established by or under a law of the Commonwealth, a
State or a Territory, or a part of such a law, prescribed for the purposes of
this paragraph.
However, a registered native title body corporate cannot be an eligible
body.
(2) A regulation prescribing a law, or a part of a law, for the purposes
of paragraph (1)(c) may be limited in its application to bodies corporate
included in a specified class or classes of bodies corporate.
2 Subsection 202(4)
Omit “may”, substitute “determined under this section may
do the following”.
3 Paragraphs 202(4)(a) and
(b)
Omit “claims”, substitute “applications”.
4 Paragraphs 202(4)(a) and
(b)
Omit “or” (last occurring).
5 Paragraph 202(4)(c)
Repeal the paragraph, substitute:
(c) assist such individuals or groups by representing them, if requested
to do so, in negotiations and proceedings relating to:
(i) the doing of acts affecting native title; or
(ii) the provision of compensation in relation to such acts; or
(iii) indigenous land use agreements or other agreements in relation to
native title; or
(iv) rights of access conferred under this Act or otherwise; or
(v) any other matter relevant to the operation of this Act;
(d) certify, in writing, applications for determinations of native title
relating to areas of land or waters wholly or partly within the area in relation
to which the representative body has been determined to be a representative
body;
(e) certify, in writing, applications for registration of indigenous land
use agreements relating to areas of land or waters wholly or partly within the
area in relation to which the representative body has been determined to be a
representative body;
(f) become a party to indigenous land use agreements.
6 At the end of section 202
Add:
Certification of applications for determinations of native
title
(5) A representative body must not certify under paragraph (4)(d) an
application for a determination of native title unless it is of the opinion
that:
(a) the applicant has authority to make the application, and deal with
matters arising in relation to it, on behalf of all the other persons in the
native title claim group; and
(b) all reasonable efforts have been made to ensure that the application
describes or otherwise identifies all the other persons in the native title
claim group.
Note: Section 251B deals with authority to
make the application.
Overlapping applications for determinations of native
title
(6) If the land or waters covered by the application are wholly or partly
covered by one or more applications (including proposed applications) of which
the representative body is aware, the representative body must make all
reasonable efforts:
(a) to achieve agreement, relating to native title over the land or
waters, between the persons in respect of whom the applications are, or would
be, made; and
(b) to minimise the number of applications covering the land or
waters.
However, a failure by the representative body to comply with this
subsection does not invalidate any certification of the application by the
representative body.
Statement to be included in certifications of applications for
determinations of native title
(7) A certification of an application for a determination of native title
by a representative body must:
(a) include a statement to the effect that the representative body is of
the opinion that the requirements of paragraphs (5)(a) and (b) have been met;
and
(b) briefly set out the body’s reasons for being of that opinion;
and
(c) where applicable, briefly set out what the representative body has
done to meet the requirements of subsection (6).
Certification of applications for registration of indigenous land use
agreements
(8) A representative body must not certify under paragraph (4)(e) an
application for registration of an indigenous land use agreement unless it is of
the opinion that:
(a) all reasonable efforts have been made to ensure that all persons who
hold or may hold native title in relation to land or waters in the area covered
by the agreement have been identified; and
(b) all of the persons so identified have authorised the making of the
agreement.
Note: Section 251A deals with authority to
make the agreement.
Statement to be included in certifications of applications for
registration of indigenous land use agreements
(9) A certification of an application for registration of an indigenous
land use agreement by a representative body must:
(a) include a statement to the effect that the representative body is of
the opinion that the requirements of paragraphs (8)(a) and (b) have been met;
and
(b) briefly set out the body’s reasons for being of that
opinion.
7 After section 202
Insert:
Before becoming a party to an indigenous land use agreement, a
representative body must, as far as practicable, consult with, and have regard
to the interests of, persons who hold or may hold native title in relation to
land or waters in that area.
8 Subsection 203(1)
After “Islander body”, insert “determined under section
202”.
9 Subsection 203(1)
Omit “the Commonwealth Minister or”.
10 Subsection 203(2)
Repeal the subsection.
Note: The heading to subsection 203(3) is altered by
omitting “—ATSIC”.
11 At the end of Part 11
Add:
Commonwealth Minister may invite applications
(1) Subject to section 203AA, the Commonwealth Minister may, in the way
determined in writing by the Commonwealth Minister, invite applications from
eligible bodies for recognition as the representative body for an
area.
Invitations may cover more than one area
(2) The invitation may specify more than one area for which applications
are invited.
Invitations to specify application period
(3) The invitation must specify the period (of at least 28 days) within
which applications are to be given to the Commonwealth Minister.
Invitations may be general
(4) For the avoidance of doubt, the way determined under subsection (1)
for inviting applications may provide for the publication of general invitations
to eligible bodies, and need not require that a separate invitation be made to
each eligible body.
Commonwealth Minister to invite applications
(1) As soon as practicable after the start of the transition period, the
Commonwealth Minister must make invitations under section 203A relating to areas
that, taken together, cover all the land and waters to which this Act extends.
The invitations need not all be made at the same time.
Matters to which Commonwealth Minister must have regard
(2) Without limiting the matters to which the Commonwealth Minister may
have regard in deciding the areas in relation to which the invitations will be
made, he or she must have regard to the following:
(a) the areas for the representative bodies that are already in
existence;
(b) the need to minimise any disruption to the performance of the
functions of those representative bodies;
(c) the requirements of subsection 203AD(4) in relation to the recognition
of representative bodies.
Invitation to representative bodies
(3) If an invitation under section 203A relates to an area (the
original invitation area) that wholly or partly covers an area for
which a body was, on the day on which this section commenced, a representative
body:
(a) the invitation must initially be made only to each of the bodies that
was, on that day, a representative body for an area wholly or partly covered by
the original invitation area; and
(b) other than as provided in subsection (4), no other invitations may be
made under section 203A, for areas that wholly or partly cover the original
invitation area, until the end of the transition period.
Situations where general invitations can still be made
(4) If the Commonwealth Minister has, as mentioned in paragraph (3)(a),
made an invitation in respect of the original invitation area to a
representative body or bodies, the Commonwealth Minister may make another
invitation within the transition period in respect of the original invitation
area, or an area wholly or partly within the original invitation area,
if:
(a) none of the bodies invited as mentioned in paragraph (3)(a) applied
for recognition as the representative body for the original invitation area
within the relevant application period under subsection 203A(3); or
(b) the Commonwealth Minister has rejected the application of each of the
bodies so invited that did apply.
Diagram of the rules for making invitations
(5) This diagram shows when, under section 203A and this section,
invitations can be made, during the transition period, for applications for
recognition as the representative body for a particular area.
Note: These rules will not apply once the transition period
has ended.
Eligible bodies may apply
(1) Subject to subsection (3), an eligible body may apply to the
Commonwealth Minister, in the form approved by the Commonwealth Minister, for
recognition as the representative body for the area, or for one or more of the
areas, in respect of which applications have been invited under section
203A.
Application period
(2) The application must be given to the Commonwealth Minister within the
period specified under subsection 203A(3), or within such further period as the
Commonwealth Minister allows (whether or not the initial period has
expired).
Invitation to existing representative bodies
(3) If the invitation in question was one to which subsection 203AA(3)
applied, an application can only be made by an eligible body that has been
invited to apply in accordance with subsection 203AA(3) or (4), as the case
requires.
(1A) The Commonwealth Minister must determine applications under section
203AB:
(a) as soon as practicable after:
(i) the period specified under subsection 203A(3); or
(ii) if a further period applies under subsection 203AB(2) in relation to
one or more of those applications—the last such further period to end;
or
(iii) if the Commonwealth Minister has, in relation to one or more of
those applications, given to a body a notice under subsection (1) requiring the
body to give further information within a specified period—the last such
period to end;
whichever occurs last; and
(b) if the applications are in respect of an invitation to which
subsection 203AA(3) applied—in any event before the end of the transition
period.
(1) The Commonwealth Minister may give to a body that has made an
application under section 203AB a notice requiring the body to give further
information relating to the application within a period specified in the
notice.
(2) The period specified:
(a) must not begin before the day on which the notice was given;
and
(b) must be a period of at least 21 days.
(3) The fact that no further information has been given to the
Commonwealth Minister as at the end of the period specified in the notice does
not prevent the Commonwealth Minister from determining the
application.
(4) The notice must contain a statement setting out the effect of
subsection (3).
Commonwealth Minister may recognise representative bodies
(1) The Commonwealth Minister may, by written instrument, recognise, as
the representative body for an area, an eligible body that has applied under
section 203AB to be the representative body for the area if the Commonwealth
Minister is satisfied that:
(a) the body will satisfactorily represent persons who hold or may hold
native title in the area; and
(b) the body will be able to consult effectively with Aboriginal peoples
and Torres Strait Islanders living in the area; and
(c) if the body is already a representative body—the body
satisfactorily performs its existing functions; and
(d) the body would be able to perform satisfactorily the functions of a
representative body.
When recognition takes effect
(2) The recognition of the body as a representative body takes effect on
the day specified in the instrument of recognition. However, that day must not
precede the day on which Division 3 commences.
Exempt State bodies
(3) The Commonwealth Minister must not recognise an exempt State body
unless satisfied that the obligations it would have under this Act, together
with its other obligations under the laws of a State, provide an appropriate
level of accountability.
Commonwealth Minister not to recognise more than one body for an
area
(4) The Commonwealth Minister must not, under this section, recognise a
body as the representative body for an area at a particular time if, at that
time, there is already a representative body recognised under this section
(whether or not the recognition has taken effect) for all or part of that
area.
Note: The fact that a representative body has previously
been determined under section 202 will not prevent recognition of a body under
this section.
Notifying unsuccessful applicants
(5) If the Commonwealth Minister decides not to recognise as the
representative body for an area a body that applied for that recognition, the
Commonwealth Minister must notify the body, in writing, of the decision and the
reasons for the decision.
Fairness of organisational structures and administrative
processes
(1) In considering, for the purposes of making a decision under this
Division in relation to a particular area, whether a body:
(a) will satisfactorily represent persons who hold or may hold native
title in the area; or
(b) will be able to consult effectively with Aboriginal peoples and Torres
Strait Islanders living in the area;
the Commonwealth Minister must take into account whether, in the
Commonwealth Minister’s opinion, the body’s organisational
structures and administrative processes will operate in a fair manner.
Criteria for assessing fairness
(2) Without limiting the matters to which the Commonwealth Minister may
have regard in assessing the fairness of the body’s organisational
structures and administrative processes, the Commonwealth Minister must have
particular regard to:
(a) the opportunities for the Aboriginal peoples or Torres Strait
Islanders for whom it might act to participate in its processes; and
(b) the level of consultation with them involved in its processes;
and
(c) its procedures for making decisions and for reviewing its decisions;
and
(d) its rules or requirements relating to the conduct of its executive
officers; and
(e) the nature of its management structures and management processes;
and
(f) its procedures for reporting back to persons who hold or may hold
native title in the area, and to the Aboriginal peoples or Torres Strait
Islanders living in the area.
Commonwealth Minister’s consideration of other matters
unaffected
(3) This section does not limit any other matters that the Commonwealth
Minister may take into account in making a decision under this
Division.
Note: Divisions 3 to 6 of this Part are to be inserted, and
will enter into force, at the end of the transition period (see Part 2 of
Schedule 3 to the Native Title Amendment Act 1997).
Commonwealth Minister may issue directions
(1) The Commonwealth Minister may, by written instrument, issue directions
requiring, or relating to, all or any of the following:
(a) a former representative body returning documents and records, relating
to the performance of its functions or the exercise of its powers in respect of
its former area, to the person or persons who provided them to the
body;
(b) the former representative body allowing access to
documents and records, relating to the performance of its functions or the
exercise of its powers in respect of its former area, by a body that has become
the representative body for all or part of the former representative
body’s former area;
(c) the former representative body:
(i) giving documents and records, relating to the performance of its
functions or the exercise of its powers in respect of its former area, to the
other representative body, but only with the consent of the owners of the
documents and records; and
(ii) giving copies of such documents and records to the other
representative body.
Directions take effect on the day on which they are issued.
Bodies must comply with directions
(3) A body to which directions apply must comply with those
directions.
Orders by the Federal Court
(4) If a body fails to comply with subsection (3), the Federal Court may,
on the application of a person affected by the non-compliance, make such orders
as it thinks fit to ensure the body’s compliance.
Definitions
(5) In this section:
former area, in relation to a former representative body,
means the area for which the body is no longer a representative body.
former representative body means a body that:
(a) has ceased to be a representative body; or
(b) has ceased to be a representative body for a particular area;
or
(c) has had the area for which it is a representative body
reduced.
An executive officer or a member of a representative body is not
personally liable to an action or other proceeding for damages in relation to an
act done or omitted to be done in good faith:
(a) by the representative body; or
(b) by the person in the capacity of executive officer or
member;
in connection with the performance of the representative body’s
functions or the exercise of its powers.
State of mind of directors, employees or agents of bodies
corporate
(1) If, for the purposes of this Part, it is necessary to establish the
state of mind of a body corporate in relation to particular conduct, it is
sufficient to show:
(a) that the conduct was engaged in by a director, employee or agent of
the body corporate within the scope of his or her actual or apparent authority;
and
(b) that the director, employee or agent had the state of mind.
Conduct of directors, employees or agents of bodies
corporate
(2) Any conduct engaged in on behalf of a body corporate by a director,
employee or agent of the body corporate within the scope of his or her actual or
apparent authority is taken, for the purposes of this Part, to have been engaged
in also by the body corporate unless the body corporate establishes that the
body corporate took reasonable precautions and exercised due diligence to avoid
the conduct.
State of mind of employees or agents of persons other than bodies
corporate
(3) If, for the purposes of this Part, it is necessary to establish the
state of mind of a person other than a body corporate in relation to a
particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by an employee or agent of the person
within the scope of his or her actual or apparent authority; and
(b) that the employee or agent had the state of mind.
Conduct of employees or agents of persons other than bodies
corporate
(4) Any conduct engaged in on behalf of a person other than a body
corporate by an employee or agent of the person within the scope of his or her
actual or apparent authority is taken, for the purposes of this Part, to have
been engaged in also by the person unless the person establishes that the person
took reasonable precautions and exercised due diligence to avoid the
conduct.
Other persons not to be punished by imprisonment
(5) If:
(a) a person other than a body corporate is convicted of an offence;
and
(b) the person would not have been convicted of the offence if subsections
(3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that
offence.
Meaning of state of mind
(6) A reference in subsection (1) or (3) to the state of mind of a person
includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
Meaning of director
(7) A reference in this section to a director of a body corporate includes
a reference to a constituent member of a body corporate incorporated for a
public purpose by a law of the Commonwealth, a State or a Territory.
Failing etc. to engage in conduct
(8) A reference in this section to engaging in conduct includes a
reference to failing or refusing to engage in conduct.
12 Section 253 (at the end of the definition of
representative Aboriginal/Torres Strait Islander
body)
Add “or that is recognised under section 203AD”.
13 Section 253
Insert:
representative body means a representative Aboriginal/Torres
Strait Islander body.
14 Paragraph 24CG(3)(a)
Omit “paragraph 202(4)(e)”, substitute “paragraph
203BE(1)(b)”.
15 Subparagraph
24CH(2)(d)(i)
Omit “paragraphs 202(8)(a) and (b)”, substitute
“paragraphs 203BE(5)(a) and (b)”.
16 Subsection 24CI(1)
Omit “paragraphs 202(8)(a) and (b)”, substitute
“paragraphs 203BE(5)(a) and (b)”.
17 Paragraph 24CK(2)(c)
Omit “paragraphs 202(8)(a) and (b)”, substitute
“paragraphs 203BE(5)(a) and (b)”.
18 Subparagraph
24EB(5)(b)(i)
Omit “paragraph 202(8)(b)”, substitute “paragraph
203BE(5)(b)”.
18A Subsection 108(1B)
Repeal the subsection, substitute:
Assistance and mediation generally
(1B) The Tribunal has the functions of:
(a) providing assistance, or mediating, in accordance with any provision
of this Act; and
(b) entering into agreements as mentioned in subsection 203BK(3) in
relation to assistance of the kind referred to in that subsection.
19 Paragraph 190C(4)(a)
Omit “paragraph 202(4)(d)”, substitute “Part
11”.
20 At the end of paragraph
190C(4)(a)
Add:
Note: An application can be certified under section 203BE,
or may have been certified under the former paragraph
202(4)(d).
21 Subsections 190C(6) and
(7)
Repeal the subsections.
22 Subparagraph
199C(1)(b)(i)
Omit “paragraph 202(8)(b)”, substitute “paragraph
203BE(5)(b)”.
23 Section 201A
Insert:
ATSIC means the Aboriginal and Torres Strait Islander
Commission established by the Aboriginal and Torres Strait Islander
Commission Act 1989.
native title application means an application under
subsection 24DJ(1) or section 61, 69 or 75, and includes an appeal under
subsection 169(1).
24 Division 1A of Part 11
Repeal the Division.
25 After section 203AD
Insert:
The Commonwealth Minister may, by written instrument, extend the area for
which a body is the representative body by adding adjoining land or waters to
the area if:
(a) there is no representative body for the adjoining land or waters;
and
(b) the Commonwealth Minister considers that the adjoining land or waters
are not of such significance that invitations should be made under section 203A
in respect of them; and
(c) the Commonwealth Minister is satisfied that the body will
satisfactorily represent persons who hold or may hold native title in the
adjoining land or waters; and
(d) the Commonwealth Minister is satisfied that the body will be able to
consult effectively with Aboriginal peoples and Torres Strait Islanders living
in the area of the adjoining land or waters; and
(e) the Commonwealth Minister is satisfied that the body will
satisfactorily perform its functions in relation to the adjoining land or
waters; and
(f) the body has agreed to the adjoining land or waters being
added.
Applications to vary areas
(1) If the boundary of an area for which a body is the representative body
adjoins the boundary of an area for which another body is the representative
body, the bodies may jointly apply in writing to the Commonwealth Minister to
vary the area for which each body is the representative body. The proposed
variations are to relate only to the adjoining boundary.
Consultation prior to applications
(2) Before making an application under subsection (1), the bodies
must:
(a) take all reasonable steps to consult the Aboriginal peoples or Torres
Strait Islanders who could reasonably be expected to be affected by the proposed
variations; and
(b) satisfy themselves that there is broad support for the variations
among the persons who hold, or may hold, native title in the area that will be
covered by a different representative body as a result of the
variations.
Matters to be included in applications
(3) The application must:
(a) include a statement of the steps the bodies took in consulting the
Aboriginal peoples or Torres Strait Islanders referred to in paragraph (2)(a);
and
(b) briefly set out the grounds on which the bodies are satisfied that
there is broad support for the variations among the persons referred to in
paragraph (2)(b).
Commonwealth Minister may vary areas
(4) The Commonwealth Minister may, by written instrument, vary the areas
for which each body is the representative body in accordance with the
application if the Commonwealth Minister is satisfied that, after the
variations:
(a) each body will satisfactorily represent the native title holders and
persons who may hold native title in the area for which it will, after the
variations, be the representative body; and
(b) each body will be able to consult effectively with Aboriginal peoples
and Torres Strait Islanders living in the area for which it will, after the
variations, be the representative body; and
(c) each body will satisfactorily perform its functions.
Grounds for reducing the areas of representative bodies
(1) The Commonwealth Minister may, by written instrument, reduce the area
for which a body is the representative body by excising a specified part of the
area if satisfied that:
(a) the body is not satisfactorily representing native title holders or
persons who may hold native title in that part of the area; or
(b) the body is not consulting effectively with Aboriginal peoples and
Torres Strait Islanders living in that part of the area; or
(c) the body is not satisfactorily performing its functions in relation to
that part of the area.
Effect on remainder of areas
(2) The Commonwealth Minister must not so reduce the area unless satisfied
that, after the reduction, the body:
(a) will satisfactorily represent native title holders or persons who may
hold native title in the remainder of the area; and
(b) will be able to consult effectively with Aboriginal peoples and Torres
Strait Islanders living in the remainder of the area; and
(c) will satisfactorily perform its functions in relation to the remainder
of the area.
Notice that reduction of area is being considered
(3) At least 90 days before deciding to reduce the area, the Commonwealth
Minister must notify the body that the reduction is being considered. The notice
must be in writing and must:
(a) state the reasons why the Minister is considering reducing the area;
and
(b) invite the body to make submissions to the Commonwealth Minister,
within the period specified in the notice, about whether the area should be
reduced.
The period specified must not begin before the day on which the notice was
given, and must be a period of at least 90 days.
Consideration of reports etc.
(4) In deciding whether to reduce the area, the Commonwealth Minister may
consider the following:
(a) any reports under section 203DF of audits or investigations of the
body;
(b) any reports under section 76 of the Aboriginal and Torres Strait
Islander Commission Act 1989 in relation to a grant made to the body under
section 203C or 203FE of this Act;
(c) any notices that ATSIC has given to the Minister under section 203F in
relation to the body;
(d) any information or documents that ATSIC has given to the Minister
under section 203FA in relation to the body.
Commonwealth Minister’s consideration of other matters
unaffected
(5) Subsection (4) does not limit any other matters that the Commonwealth
Minister may take into account in deciding whether to reduce the area.
Consideration of submissions
(6) In deciding whether to reduce the area, the Commonwealth Minister must
consider any submissions made by the body within the period referred to in
subsection (3).
Notice of decision
(7) As soon as practicable after deciding whether to reduce the area, the
Commonwealth Minister must notify the body, in writing, of:
(a) the decision; and
(b) if the decision is that the area be reduced—the reasons for the
decision.
Mandatory grounds for withdrawing recognition
(1) The Commonwealth Minister must, by written instrument, withdraw the
recognition of a body as the representative body for an area if:
(a) the body has ceased to exist; or
(b) the body makes a written request to the Commonwealth Minister for the
recognition to be withdrawn.
However, paragraph (b) only applies if the request was authorised by a
meeting of the body open to all its members and convened and conducted in
accordance with the procedures governing the convening and conduct of such
meetings by the body. The body must include in its request to the Commonwealth
Minister evidence that the request was so authorised.
Discretionary grounds for withdrawing recognition
(2) The Commonwealth Minister may, by written instrument, withdraw the
recognition of a body as the representative body for an area if satisfied
that:
(a) the body:
(i) is not satisfactorily representing the native title holders or persons
who may hold native title in the area; or
(ii) is not consulting effectively with Aboriginal peoples and Torres
Strait Islanders living in the area; or
(iii) is not satisfactorily performing its functions; and
(b) the body is unlikely to take steps to ensure that, within a reasonable
period, none of subparagraphs (a)(i), (ii) and (iii) apply in relation to the
body.
Notice that withdrawal of recognition is being considered
(3) At least 90 days before deciding to withdraw the recognition under
subsection (2), the Commonwealth Minister must notify the body that withdrawal
of the recognition is being considered. The notice must be in writing and
must:
(a) state the reasons why the Minister is considering withdrawal of the
recognition; and
(b) invite the body to make submissions to the Commonwealth Minister,
within the period specified in the notice, about whether the recognition should
be withdrawn.
The period specified must not begin before the day on which the notice was
given, and must be a period of at least 90 days.
Consideration of reports etc.
(4) In deciding whether to withdraw the recognition under subsection (2),
the Commonwealth Minister may consider the following:
(a) any reports under section 203DF of audits or investigations of the
body;
(b) any reports under section 76 of the Aboriginal and Torres Strait
Islander Commission Act 1989 in relation to a grant made to the body under
section 203C or 203FE of this Act;
(c) any notices that ATSIC has given to the Minister under section 203F in
relation to the body;
(d) any information or documents that ATSIC has given to the Minister
under section 203FA in relation to the body.
Commonwealth Minister’s consideration of other matters
unaffected
(5) Subsection (4) does not limit any other matters that the Commonwealth
Minister may take into account in making a decision under subsection
(2).
Consideration of submissions
(6) In deciding whether to withdraw the recognition under subsection (2),
the Commonwealth Minister must consider any submissions made by the body within
the period referred to in subsection (3).
Notice of decision
(7) As soon as practicable after deciding whether to withdraw the
recognition under subsection (2), the Commonwealth Minister must notify the
body, in writing, of:
(a) the decision; and
(b) if the decision is that the recognition be withdrawn—the reasons
for the decision.
26 Paragraph 203AI(1)(a)
After “will satisfactorily represent”, insert “, or is
not satisfactorily representing,”.
27 Paragraph 203AI(1)(b)
After “will be able to consult effectively”, insert “, or
is not consulting effectively,”.
28 Subsection 203AI(1)
After “operate”, insert “, or are
operating,”.
29 Subsection 203AI(3)
(note)
Repeal the note.
30 After Division 2 of Part
11
Insert:
General
(1) A representative body has the following functions:
(a) the facilitation and assistance functions referred to in
section 203BB;
(b) the certification functions referred to in section
203BE;
(c) the dispute resolution functions referred to in section
203BF;
(d) the notification functions referred to in section
203BG;
(e) the agreement making function referred to in section
203BH;
(f) the internal review functions referred to in section
203BI;
(g) the functions referred to in section 203BJ and such other functions as
are conferred on representative bodies by this Act.
Other laws may confer functions
(2) The functions conferred on a representative body by this Act are in
addition to, and not instead of, any functions conferred on the representative
body (whether in its capacity as a representative body or otherwise) by or
under:
(a) any other law of the Commonwealth; or
(b) a law of a State or Territory.
Representative bodies to perform functions
(3) Except as mentioned in section 203BB, 203BD or 203BK, a representative
body must not enter into an arrangement with another person under which the
person is to perform the functions of the representative body.
Priorities of representative bodies
(4) A representative body:
(a) must from time to time determine the priorities it will give to
performing its functions under this Part; and
(b) may allocate resources in the way it thinks fit so as to be able to
perform its functions efficiently;
but must give priority to the protection of the interests of native title
holders.
Functions to be performed in a timely manner
(1) A representative body must use its best efforts to perform its
functions in a timely manner, particularly in respect of matters affected
by:
(a) the time limits under this Act; or
(b) time limits, under another law of the Commonwealth or a law of a State
or Territory, that are relevant to the performance of its functions.
Maintenance of organisational structures and processes
(2) A representative body must perform its functions in a manner
that:
(a) maintains organisational structures and administrative processes that
promote the satisfactory representation by the body of native title holders and
persons who may hold native title in the area for which it is the representative
body; and
(b) maintains organisational structures and administrative processes that
promote effective consultation with Aboriginal peoples and Torres Strait
Islanders living in the area for which it is the representative body;
and
(c) ensures that the structures and processes operate in a fair manner,
having particular regard to the matters set out in paragraphs 203AI(2)(a) to
(f).
General
(1) The facilitation and assistance functions of a
representative body are:
(a) to research and prepare native title applications, and to facilitate
research into, preparation of and making of native title applications;
and
(b) to assist registered native title bodies corporate, native title
holders and persons who may hold native title (including by representing them or
facilitating their representation) in consultations, mediations, negotiations
and proceedings relating to the following:
(i) native title applications;
(ii) future acts;
(iii) indigenous land use agreements or other agreements in relation to
native title;
(iv) rights of access conferred under this Act or otherwise;
(v) any other matters relating to native title or to the operation of this
Act.
Facilitation and assistance functions only exercisable on
request
(2) A representative body must not perform its facilitation and assistance
functions in relation to a particular matter unless it is requested to do
so.
Facilitation and assistance functions only exercisable within a
representative body’s area
(3) A representative body can only perform its facilitation and assistance
functions in relation to a matter that relates to land or waters:
(a) that are wholly within the area for which the body is the
representative body; or
(b) that are partly within that area.
If paragraph (b) applies, the body must not perform the functions for the
part of the land or waters that is outside that area except in accordance with
section 203BD.
Consent required if matters relate to same land or waters
(4) If:
(a) a registered native title body corporate or a person who holds or may
hold native title requests that a representative body represent the body or the
person (the new body or person) in relation to a particular matter
that relates to particular land or waters; and
(b) the representative body is already representing another body or person
(the original body or person) in relation to one or more other
matters that relate wholly or partly to that land or those waters;
the representative body must not represent the new body or person unless
the representative body has obtained consent, from the original body or person,
for the representative body also to represent the new body or person to the
extent that the other matters relate to the land or waters.
“Briefing out” matters that relate to the same land or
waters
(5) Subsection (4) does not prevent a representative body from
facilitating the representation of a body or person, in relation to a particular
matter, by entering into an arrangement with another person under which the
other person represents the body or person in relation to that matter.
Definition
(6) In this section and section 203BC:
matter means a native title application, or a consultation,
mediation, negotiation or proceeding of a kind referred to in paragraph
(1)(b).
General
(1) In performing its facilitation and assistance functions in relation to
any matter, a representative body must:
(a) consult with, and have regard to the interests of, any registered
native title bodies corporate, native title holders or persons who may hold
native title who are affected by the matter; and
(b) if the matter involves the representative body representing such
bodies corporate, native title holders or persons—be satisfied they
understand and consent to any general course of action that the representative
body takes on their behalf in relation to the matter.
Consent of native title holders etc.
(2) For the purposes of paragraph (1)(b), a native title holder or a
person who may hold native title is taken to have consented to action
if:
(a) where there is a process of decision-making that, under the
traditional laws and customs of the group to which he or she belongs, must be
complied with in relation to giving consent of that kind—the consent was
given in accordance with that process; or
(b) where there is no such process of decision-making—the consent
was given in accordance with a process of decision-making agreed to and adopted
by the members of the group to which he or she belongs in relation to giving the
consent or giving consent of that kind.
Streamlining of applications process
(3) In performing its facilitation and assistance functions in relation to
an application under section 61 in relation to land or waters wholly or partly
within the area for which the body is the representative body, the
representative body must:
(a) act in a way that promotes an orderly, efficient and cost-effective
process for making such applications; and
(b) if the land or waters covered by the application are wholly or partly
covered by one or more applications (including proposed applications) of which
the representative body is aware—make all reasonable efforts to minimise
the number of applications covering the land or waters.
If:
(a) a native title application covers land or waters partly within the
area for which the body is the representative body and partly within an
adjoining area for which another body is the representative body; or
(b) a consultation, mediation, negotiation or proceeding relates
to:
(i) a native title application; or
(ii) a future act; or
(iii) an indigenous land use agreement or other agreement in relation to
native title; or
(iv) a right of access conferred under this Act or otherwise; or
(v) any other matter relating to native title or to the operation of this
Act;
in respect of the areas referred to in paragraph (a);
the first-mentioned representative body may perform its facilitation and
assistance functions, in relation to the application, consultation, mediation,
negotiation or proceeding, for the part of the land or waters within the
adjoining area, if it is acting in accordance with a written arrangement entered
into with the other representative body.
General
(1) The certification functions of a representative body
are:
(a) to certify, in writing, applications for determinations of native
title relating to areas of land or waters wholly or partly within the area for
which the body is the representative body; and
(b) to certify, in writing, applications for registration of indigenous
land use agreements relating to areas of land or waters wholly or partly within
the area for which the body is the representative body.
Certification of applications for determinations of native
title
(2) A representative body must not certify under paragraph (1)(a) an
application for a determination of native title unless it is of the opinion
that:
(a) all the persons in the native title claim group have authorised the
applicant to make the application and to deal with matters arising in relation
to it; and
(b) all reasonable efforts have been made to ensure that the application
describes or otherwise identifies all the other persons in the native title
claim group.
Note: Section 251B deals with authority to
make the application.
Overlapping applications for determinations of native
title
(3) If the land or waters covered by the application are wholly or partly
covered by one or more applications (including proposed applications) of which
the representative body is aware, the representative body must make all
reasonable efforts to:
(a) achieve agreement, relating to native title over the land or waters,
between the persons in respect of whom the applications are, or would be, made;
and
(b) minimise the number of applications covering the land or
waters.
However, a failure by the representative body to comply with this
subsection does not invalidate any certification of the application by the
representative body.
Statement to be included in certifications of applications for
determinations of native title
(4) A certification of an application for a determination of native title
by a representative body must:
(a) include a statement to the effect that the representative body is of
the opinion that the requirements of paragraphs (2)(a) and (b) have been met;
and
(b) briefly set out the body’s reasons for being of that opinion;
and
(c) where applicable, briefly set out what the representative body has
done to meet the requirements of subsection (3).
Certification of applications for registration of indigenous land use
agreements
(5) A representative body must not certify under paragraph (1)(b) an
application for registration of an indigenous land use agreement unless it is of
the opinion that:
(a) all reasonable efforts have been made to ensure that all persons who
hold or may hold native title in relation to land or waters in the area covered
by the agreement have been identified; and
(b) all the persons so identified have authorised the making of the
agreement.
Note: Section 251A deals with authority to
make the agreement.
Statement to be included in certifications of applications for
registration of indigenous land use agreements
(6) A certification of an application for registration of an indigenous
land use agreement by a representative body must:
(a) include a statement to the effect that the representative body is of
the opinion that the requirements of paragraphs (5)(a) and (b) have been met;
and
(b) briefly set out the body’s reasons for being of that
opinion.
Dispute resolution functions
(1) The dispute resolution functions of a representative
body are:
(a) to assist in promoting agreement between its constituents
about:
(i) the making of native title applications; or
(ii) the conduct of consultations, mediations, negotiations or proceedings
about native title applications, future acts, indigenous land use agreements,
rights of access conferred under this Act or otherwise or about any other matter
relating to native title or the operation of this Act; and
(b) to mediate between its constituents about the making of such
applications or the conduct of such consultations, mediations, negotiations or
proceedings.
Meaning of constituent
(2) In this section:
constituent means:
(a) a person on whose behalf the representative body is acting or may act;
or
(b) a registered native title body corporate in relation to native title
in the area in respect of which the representative body is recognised;
or
(c) a native title holder in relation to native title in that area;
or
(d) a person who may hold native title in that area.
The notification functions of a representative body
are:
(a) to ensure that, as far as reasonably practicable, notices:
(i) that are given to the representative body (whether under this Act or
otherwise); and
(ii) that relate to land or waters wholly or partly within the area for
which the body is a representative body;
are brought to the attention of any person who holds or may hold native
title in relation to the land or waters and of whom the representative body is
aware, but who would not otherwise be given such notices; and
(b) as far as is reasonably practicable, to identify and notify other
persons who hold or may hold native title in relation to the land or waters
about notices of the kind mentioned in paragraph (a); and
(c) as far as is reasonably practicable, to advise the persons referred to
in paragraphs (a) and (b) of relevant time limits under this Act or another law
of the Commonwealth or a law of a State or a Territory, if the person would not
otherwise be notified of those time limits.
Note: Subsection 203BA(1) requires a representative body to
make its best efforts to perform its functions in a timely manner, particularly
in respect of matters affected by time limits.
(1) The agreement making function of a representative body
is to be a party to indigenous land use agreements.
(2) In performing its agreement making function in respect of an area, a
representative body must, as far as practicable, having regard to the matters
proposed to be covered by the agreement, consult with, and have regard to the
interests of, persons who hold or may hold native title in relation to land or
waters in that area.
The internal review functions of a representative body
are:
(a) to provide a process for registered native title bodies corporate,
native title holders and persons who may hold native title to seek review by the
representative body of its decisions and actions, made or taken in the
performance of its functions or the exercise of its powers, that affect them;
and
(b) to publicise that process appropriately.
In addition to the functions referred to in sections 203BB to 203BI, a
representative body must:
(a) as far as is reasonably practicable, enter into written arrangements
with other representative bodies so that the representative body can exercise
its facilitation and assistance functions in relation to a matter of a kind
referred to in paragraph 203BD(a) or (b); and
(b) as far as is reasonably practicable, identify persons who may hold
native title in the area for which the body is the representative body; and
(c) as far as is reasonably practicable, take such action as the body
considers appropriate to promote understanding, among Aboriginal people and
Torres Strait Islanders living in the area, about matters relevant to the
operation of this Act; and
(d) as far as is reasonably practicable, inform such of the following as
the representative body knows are, in relation to the area:
(i) registered native title bodies corporate;
(ii) native title holders;
(iii) persons who may hold native title;
of any matter that the representative body considers may relate to, or
may have an impact upon, native title in the area; and
(e) whenever the body considers it necessary in the performance of its
functions—consult with Aboriginal or Torres Strait Islander communities
that might be affected by the matters with which the body is dealing;
and
(f) as far as is reasonably practicable, co-operate with other
representative bodies for the purpose of promoting the effective and efficient
exercise of the functions and powers of representative bodies.
(1) A representative body has power to do all things necessary or
convenient to be done for or in connection with the performance of its
functions.
(2) Without limiting subsection (1), a representative body has power to
enter into arrangements and contracts to obtain services to assist in the
performance by the representative body of its functions.
Assistance in performing dispute resolution functions
(3) Without limiting subsection (1), in performing its dispute resolution
functions in a particular case, a representative body may be assisted by the
NNTT, but only if the representative body and the NNTT have entered into an
agreement under which the representative body is liable to pay the NNTT for the
assistance.
Representative body may apply for grant
(1) A representative body may apply to ATSIC for a grant of money under
this section for the purpose of enabling the body to perform its functions or
exercise its powers.
Grants of money
(2) ATSIC may make a grant of money to the representative body from money
appropriated for the purposes of ATSIC.
(3) The grant of money may be:
(a) in respect of a financial year; or
(b) in respect of a part of a financial year; or
(c) in respect of any other period not exceeding 3 years.
Conditions of grants
(1) A grant of money to a representative body under this Division may be
subject to such conditions as ATSIC thinks fit. However, ATSIC must impose
conditions relating to:
(a) the purposes for which the money may be spent; and
(b) the period within which the money is to be spent; and
(c) the acquittal of money spent; and
(d) the giving of information relating to expenditure of the money;
and
(e) the appointment of a person, in cases where ATSIC considers that grant
money has not been spent in accordance with the conditions of the grant, with
the power to prevent expenditure of further grant money otherwise than in
accordance with the conditions of the grant; and
(f) the representative body’s continuing satisfactory performance of
its functions and continuing compliance with this Act; and
(g) the giving of information relating to the performance of the
body’s functions and its compliance with this Act.
Repayment of part of grant on withdrawal of recognition
(1A) The grant is also subject to a condition that if:
(a) the representative body’s recognition as a representative body
is withdrawn under section 203AH; and
(b) the withdrawal takes effect during the period to which the grant
relates;
the representative body must repay to ATSIC an amount equal to so much (if
any) of the grant as is uncommitted at the time the recognition is
withdrawn.
Uncommitted amount of the grant
(1B) For the purposes of subsection (1A), the amount of the grant that is
uncommitted is the difference (if any) between:
(a) the portion (if any) of the grant that has, at the time the
recognition is withdrawn, been paid to the representative body by ATSIC;
and
(b) the sum of:
(i) the portion (if any) of the grant that has, at that time, been spent
by the representative body in connection with the performance of its functions
and the exercise of its powers; and
(ii) the portion (if any) of the grant that the representative body is, at
that time, liable to pay to other persons in connection with the performance of
its functions and the exercise of its powers.
Strategic plan to be considered in making grants
(2) In making the grant and deciding on the conditions to be imposed under
subsection (1), ATSIC must have regard to the matters set out in the strategic
plan (see section 203D) of the representative body concerned. The conditions of
the grant must be consistent with the strategic plan.
Bodies must comply with conditions of grants
(3) The representative body must comply with the conditions of the
grant.
Application of ATSIC Act
(4) Sections 20, 21, 21A and 22 of the Aboriginal and Torres Strait
Islander Commission Act 1989 apply to a grant under this Division as if the
grant had been made under section 14 of that Act.
Note: The effect of this subsection is to enable ATSIC to
recover from a representative body amounts of grants if the body breaches
conditions of those grants.
Serious or repeated breaches of conditions
(5) If ATSIC considers that the representative body:
(a) has committed, or is committing, serious breaches of conditions of a
grant under this Division; or
(b) has repeatedly breached, or is repeatedly breaching, conditions of a
grant under this Division;
ATSIC must give to the Commonwealth Minister a written notice informing the
Minister of the breaches and stating what measures ATSIC is taking, or proposes
to take, as a result of the breaches.
Payment into bank account
(1) A representative body must pay all money received by it under this
Division into an account maintained by it with a bank.
Surplus money
(2) The representative body may invest surplus money:
(a) on deposit with a bank; or
(b) in securities of the Commonwealth or of a State or Territory;
or
(c) in securities guaranteed by the Commonwealth, a State or a Territory;
or
(d) in any other manner approved by the Treasurer in writing.
Restrictions on entering into contracts
(3) A provision of the law by or under which the representative body is
incorporated to the effect that the body must not enter into a contract
involving expenditure or payment of more than a specified amount of money
without a specified person’s approval does not apply to a contract for the
investment of money under subsection (2), unless:
(a) the provision expressly states that it applies to such a contract;
or
(b) the body concerned is an exempt State body.
Definitions
(4) In this section, unless the contrary intention appears:
bank means:
(a) a person who carries on the business of banking, either in Australia
or outside Australia; or
(b) any other institution:
(i) that carries on a business in Australia that consists of or includes
taking money on deposit; and
(ii) the operations of which are subject to prudential supervision or
regulation under a law of the Commonwealth, a State or a Territory.
surplus money means money received by the representative body
under this Division that is not immediately required for the purposes of the
body.
Representative body must prepare strategic plan
(1) A representative body must prepare a strategic plan relating to its
functions for each period (of not less than 3 years) determined in writing by
the Minister.
Note: A reference to a representative body’s functions
is a reference to its functions and obligations under this Act—see section
201A.
Matters to be included in strategic plan
(2) The strategic plan must include, but is not limited to, the following
matters:
(a) a general financial plan;
(b) a general statement of the objectives of the body in relation to the
performance of its functions and the exercise of its powers;
(c) a general statement of the strategies and policies proposed to achieve
those objectives, including, but not limited to, strategies and policies about
the following:
(i) consultation with Aboriginal peoples and Torres Strait Islanders about
matters relevant to the operation of this Act;
(ii) procedures for making decisions and for providing the review process
referred to in paragraph 203BI(a);
(iii) the setting of priorities by the body in relation to the performance
of its functions and the exercise of its powers.
Strategic plan to be prepared in consultation with ATSIC
(3) The representative body must prepare the strategic plan in
consultation with ATSIC.
Revision of strategic plan
(4) The representative body may revise the strategic plan during the
period to which the strategic plan relates if the representative body considers,
after consultation with ATSIC, that circumstances have arisen that could
significantly affect the achievement of the objectives set out in the strategic
plan.
Strategic plan to be given to Commonwealth Minister for
approval
(5) The representative body must give the strategic plan or revised
strategic plan, as the case requires, to the Commonwealth Minister for approval
as soon as practicable after it is prepared or revised.
Commonwealth Minister to be informed of significant
matters
(6) The representative body must inform the Commonwealth Minister about
matters that might significantly affect the achievement of the objectives in the
strategic plan.
Strategic plan to be made available
(7) The representative body must make copies of the strategic plan
generally available to:
(a) native title holders in relation to land or waters in the area for
which the body is the representative body; and
(b) registered native title bodies corporate in relation to native title
in that area; and
(c) persons who may hold native title in that area; and
(d) Aboriginal persons and Torres Strait Islanders living in that
area.
Proper accounts and records to be kept
(1) A representative body must keep accounting records that properly
record and explain its transactions and financial position, to the extent that
its transactions and financial position relate to the performance of its
functions or the exercise of its powers. It must keep those records in a way
that:
(a) enables the preparation of the financial statements required by this
Division; and
(b) allows those financial statements to be conveniently and properly
audited in accordance with this Division.
Accounting records to be separate from others
(2) The body must keep accounts and records required to be kept by
subsection (1) separate from any other accounts and records kept by the
body.
Retention of accounting records
(3) The body must retain those records for at least 7 years after
completion of the transactions to which they relate.
Availability of accounting records
(4) The body must make those records available at all reasonable times for
inspection by any director of the body.
A representative body must do all things necessary to ensure that
payments out of the money of the body are correctly made and properly
authorised, and that adequate control is maintained over:
(a) the assets of, or in the custody of, the body; and
(b) the incurring of liabilities by the body;
to the extent that the payments, or the assets or liabilities, relate to
the performance of its functions or the exercise of its powers.
Annual report
(1) A representative body must, in respect of each financial
year:
(a) prepare a report of the operations of the body during that year,
together with financial statements in respect of that year; and
(b) give the report and the financial statements to ATSIC by 15 October in
the next financial year.
Extensions of the deadline
(2) ATSIC may grant an extension of time (whether or not the initial
deadline has expired) in special circumstances.
Report to relate to representative body functions
(3) The report and the financial statements are to relate only to the
performance of its functions or the exercise of its powers.
Form of financial statements
(4) The financial statements must be in such form as the Commonwealth
Minister approves in writing, and must be accompanied by a copy of the report on
those statements prepared in accordance with subsection (5).
Audit of financial statements
(5) The financial statements must be audited by a person having the
prescribed qualifications and appointed by the body for the purpose, who is to
report to the body:
(a) whether the statements are based on proper accounts and records;
and
(b) whether the statements are in agreement with the accounts and records;
and
(c) whether the receipt, expenditure and the investment of money, and the
acquisition and disposal of assets, by the body during the year have been in
accordance with this Act and any grant conditions imposed under subsection
203CA(1); and
(d) as to such other matters arising out of the statements as the person
appointed considers should be reported to the body.
Report to be laid before Parliament
(6) On receipt of a report and financial statements given under subsection
(1), ATSIC must provide a copy of each document to the Commonwealth Minister,
who must cause them to be laid before each House of the Parliament within 15
sitting days of that House after the day on which the Commonwealth Minister
receives that report and those financial statements.
Body recognised during last 3 months of a financial year
(1) If the recognition of a representative body under section 203AD takes
effect during the last 3 months of a financial year:
(a) the representative body is not required to prepare an annual report
and financial statements for that financial year; and
(b) the period from the time of recognition to the end of the financial
year must be dealt with in the next annual report and financial
statements.
Representative body established during first 9 months of a financial
year
(2) Subject to section 203DE, if the recognition of a representative body
under section 203AD takes effect during the first 9 months of a financial year,
the annual report and financial statements for the financial year must cover the
period from the time of recognition to the end of the financial year.
If the recognition of a body as a representative body is withdrawn under
section 203AH during a financial year, the annual report and financial
statements must cover the period from the beginning of the financial year to the
time at which the withdrawal of recognition takes effect.
Appointment of person to conduct inspection and audit or
investigation
(1) The Commonwealth Minister may appoint a person who, in the
Commonwealth Minister’s opinion, has skills or knowledge in relation to
matters of substantial relevance to the conduct of an inspection and audit or
investigation under this section to:
(a) inspect and audit the accounts and records kept by a representative
body under section 203DA; or
(b) investigate the body’s performance of its functions and exercise
of its powers.
Note: A representative body may also be audited under
Division 9 of Part 2 of the Aboriginal and Torres Strait Islander Commission
Act 1989, which enables the Office of Evaluation and Audit, when requested
to do so by the Commonwealth Minister or ATSIC, to evaluate and audit the
operations of a body that has received a grant from ATSIC.
Circumstances in which auditor or investigator can be
appointed
(2) The Commonwealth Minister must not appoint a person under subsection
(1) to conduct an inspection and audit, or an investigation, of a representative
body unless the Commonwealth Minister is of the opinion that there is, or may
be:
(a) serious or repeated irregularities in the financial affairs of the
representative body; or
(b) a serious failure, or repeated failure, to perform its
functions.
Notice requirements
(3) If the Commonwealth Minister decides that an inspection and audit, or
an investigation, is to be undertaken under this section, the Commonwealth
Minister must give written notice of that decision to the representative body
concerned. The notice must name the person who is to carry out the inspection
and audit or the investigation.
Report to Commonwealth Minister
(4) A person appointed under subsection (1) to conduct an inspection and
audit or an investigation must give to the Commonwealth Minister a report on the
results of that inspection and audit or investigation.
Irregularity to be disclosed
(5) A report under subsection (4) must draw attention to:
(a) any irregularity in the financial affairs of the body disclosed by the
inspection and audit or the investigation; or
(b) any failure by the body to perform its functions disclosed by the
inspection and audit or the investigation.
Report not to contain matters subject to legal professional
privilege
(6) A report under subsection (4) must not contain any information, or
include any document or record, that is subject to legal professional privilege
or that is derived from information that is subject to legal professional
privilege.
Legal professional privilege must be claimed
(7) For the purposes of subsection (6), information, or a document
or record, is not taken to be subject to legal professional privilege unless, at
or before the time it was obtained by the person appointed under subsection (1),
it was claimed to be subject to legal professional privilege by a person
entitled to make such a claim.
Auditor or investigator taken to be a Commonwealth officer
(8) To avoid doubt, a person appointed under subsection (1) of this
section is taken, for the purposes of sections 70, 72, 73, 74 and 75 of the
Crimes Act 1914, to be a Commonwealth officer.
General
(1) For the purpose of conducting an inspection and audit, or an
investigation, of a representative body under section 203DF, the person
appointed under subsection 203DF(1):
(a) is entitled at all reasonable times to full and free access to
documents relating to the representative body; and
(b) may make copies, or take extracts from, any such document;
and
(c) may require a representative body:
(i) to answer such questions; and
(ii) to produce such documents in the representative body’s
possession or to which the representative body has access;
as the person so appointed considers necessary for that
purpose.
Use of legally professionally privileged documents
(2) A representative body must produce a document or record or disclose
information as required under paragraph (1)(c), whether or not the document,
record or information is the subject of legal professional privilege.
Production does not affect legal professional privilege
(3) A document, record or information does not cease to be the subject of
legal professional privilege merely because it is produced under paragraph
(1)(c).
Failure to comply with paragraph (1)(c)
(4) A representative body who, without reasonable excuse, refuses or fails
to comply with the requirement under paragraph (1)(c) is guilty of an offence
punishable upon conviction by a fine not exceeding 20 penalty units.
Self-incrimination
(5) For the purposes of subsection (4), it is not a reasonable excuse for
a representative body to refuse or fail:
(a) to give information; or
(b) to produce a record or document;
in accordance with a requirement under paragraph (1)(c), on the ground that
the information or the production of the document or record, as the case may be,
might tend to incriminate the representative body or make the representative
body liable to a penalty.
Admissibility in criminal proceedings
(6) Despite subsection (5):
(a) giving the information or producing the document or record;
or
(b) any information, document, record or thing obtained as a direct or
indirect consequence of the giving of the information or production of the
document or record;
is not admissible in evidence against the person in any criminal
proceedings, other than proceedings against, or arising out of, subsection (4)
or (7).
Knowingly making a statement that is false or misleading
(7) A representative body who, in purported compliance with the
requirement under paragraph (1)(c), makes a statement that it knows to be false
or misleading in a material particular, is guilty of an offence punishable on
conviction by a fine not exceeding 20 penalty units.
A withdrawal of the body’s recognition under section 203AH does not
affect the undertaking of an inspection and audit, or investigation, under
section 203DF.
Relation to representative body functions and powers
(1) This Division does not apply to anything that is not related to the
performance of the functions of a representative body or the exercise of its
powers.
Exempt State bodies
(2) This Division does not apply to the directors or executive officers of
a representative body that is an exempt State body, except to the extent that a
law of a State provides that it does so apply.
Subject to this section and to section 203EB, Division 4 of Part 3 and
Schedule 2 (other than clauses 8 and 12) of the Commonwealth Authorities and
Companies Act 1997 apply in relation to a representative body as
if:
(a) each reference in that Division and in that Schedule to a Commonwealth
authority were a reference to the representative body; and
(b) each reference in that Division to an officer of a Commonwealth
authority were a reference to an executive officer of the representative body;
and
(c) each reference in that Division to a former officer of a Commonwealth
authority were a reference to a former executive officer of the representative
body; and
(d) each reference in that Division and in that Schedule to a director of
a Commonwealth authority were a reference to a director of the representative
body; and
(e) each reference in that Division to the Board of a Commonwealth
authority were a reference to the governing body of the representative body;
and
(f) each reference in that Schedule to the Finance Minister were a
reference to the Commonwealth Minister.
Section 21 of the Commonwealth Authorities and Companies Act 1997
applies in relation to a representative body as if subsections (3), (4) and (5)
were omitted and the following subsection substituted:
(3) The director:
(a) must not be present during any deliberation by the governing body on
the matter; and
(b) must not take part in any decision of the governing body on the
matter.
To avoid doubt, sections 203EA and 203EB do not affect the obligations
imposed by the Commonwealth Authorities and Companies Act 1997 upon a
representative body that is a Commonwealth authority within the meaning of
section 7 of that Act.
31 Before section 203FC
Insert:
If ATSIC is of the opinion that:
(a) a representative body is not satisfactorily representing the native
title holders or persons who may hold native title in the area for which the
body is the representative body; or
(b) a representative body is not effectively consulting with Aboriginal
peoples and Torres Strait Islanders living in the area; or
(c) a representative body is not satisfactorily performing its functions;
or
(d) there may be irregularities in the financial affairs of a
representative body;
ATSIC must give written notice of its opinion to the Commonwealth
Minister.
Note: ATSIC must also give written notice of breaches of
grant conditions to the Commonwealth Minister—see subsection
203CA(5).
If the Commonwealth Minister suspects that, in relation to a particular
matter:
(a) a representative body is not satisfactorily representing the native
title holders or persons who may hold native title in the area for which the
body is the representative body; or
(b) a representative body is not effectively consulting with Aboriginal
peoples and Torres Strait Islanders living in the area; or
(c) a representative body is not satisfactorily performing its functions;
or
(d) there may be irregularities in the financial affairs of the
representative body; or
(e) the representative body has breached, or is breaching, a condition of
a grant under Division 4;
the Commonwealth Minister may request that ATSIC provide to the
Commonwealth Minister all information or documents, or specified information or
documents, in ATSIC’s possession that relates to that matter. ATSIC must
comply with the request.
Person may apply for review
(1) An Aboriginal person or Torres Strait Islander affected by a decision
of a representative body not to assist him or her in the performance of its
facilitation and assistance functions under section 203BB may apply to ATSIC for
review of the decision.
Appointment of person to conduct the review
(2) As soon as practicable after receiving the application, ATSIC must
appoint to conduct the review a person who, in ATSIC’s opinion, has skills
or knowledge in relation to matters of substantial relevance to the conduct of
the review.
Review of decision
(3) Subject to subsection (4), the person appointed must review the
decision and report to ATSIC whether:
(a) the decision should be affirmed; or
(b) ATSIC should make a grant of money under section 203FE to a person or
body for the purpose of performing specified facilitation and assistance
functions of a representative body in relation to the matter to which the
decision relates.
Failure to use internal review procedures
(4) The person appointed may refuse to review the decision if satisfied
that the applicant did not, before applying for the review, make all reasonable
efforts to seek a review by the representative body of its decision.
Report to be given within 3 months
(5) The person appointed must give the report referred to in subsection
(3) to ATSIC within 3 months after the day on which he or she was appointed, or
within such other period as ATSIC allows (whether or not the 3 months have
expired).
Inviting submissions
(6) Before reviewing the decision, the person appointed must invite the
representative body that made the decision to make a submission in relation to
the decision. The invitation must specify a period of not less than 14 days
within which submissions must be made.
Action to be taken by ATSIC
(7) ATSIC must, within one month of the end of the period referred to in
subsection (5):
(a) affirm the decision; or
(b) make a grant of money under section 203FE as mentioned in paragraph
(3)(b) of this section.
Notice of decision on review
(8) ATSIC must give the applicant and the representative body written
notice of its decision under subsection (7). The notice must include the reasons
for that decision.
32 After subsection
203FC(1)
Insert:
Functions performed on request
(2) The directions must not require the original representative body to
allow access, or to give, to the other representative body documents and records
that relate to the original representative body:
(a) performing its facilitation and assistance functions under section
203BB in relation to a particular matter; or
(b) exercising its powers for or in connection with the performance of
those functions in relation to that matter;
unless the other representative body has been requested under subsection
203BB(2) to perform those functions in relation to that matter.
33 After section 203FD
Insert:
Grants if there is no representative body
(1) ATSIC may make one or more grants of money to a person or body for the
purpose of enabling the person or body to perform, in respect of a specified
area for which there is no representative body:
(a) all the functions of a representative body; or
(b) specified functions of a representative body;
either generally or in relation to one or more specified matters.
Grants following certain decisions under section 203FB
(2) ATSIC may make one or more grants of money to a person or body for the
purpose of enabling the person or body to perform specified facilitation and
assistance functions of a representative body in relation to a matter to which a
decision under paragraph 203FB(7)(b) relates.
Conditions of grants
(3) A grant of money to a person or body under this section may be subject
to such conditions as ATSIC thinks fit. However, ATSIC must impose conditions
relating to:
(a) the purposes for which the money may be spent; and
(b) the period within which the money is to be spent; and
(c) the acquittal of money spent; and
(d) the giving of information relating to expenditure of the money;
and
(e) the appointment of a person, in cases where ATSIC considers that grant
money has not been spent in accordance with the conditions of the grant, with
the power to prevent expenditure of further grant money otherwise than in
accordance with the conditions of the grant; and
(f) the person’s or body’s continuing satisfactory performance
of its functions referred to in subsection (1) or (2), as the case requires;
and
(g) the giving of information relating to the performance of the functions
referred to in subsection (1) or (2), as the case requires.
Grant period to be specified
(4) ATSIC must determine the period during which the person or body may
spend the money.
Grant period may be extended
(5) If ATSIC considers it appropriate, ATSIC may determine that the period
during which the person or body may spend the money is extended for a specified
further period.
Persons or bodies must comply with conditions etc.
(6) The person or body must comply with the conditions of the grant, and
with any determinations under subsection (4) or (5).
Application of ATSIC Act
(7) Sections 20, 21, 21A and 22 of the Aboriginal and Torres Strait
Islander Commission Act 1989 apply to a grant under this section as if the
grant had been made under section 14 of that Act.
Note: The effect of this subsection is to enable ATSIC to
recover from a person or body amounts of grants if the person or body breaches
conditions of those grants.
Obligations under other laws unaffected
(1) The obligations imposed on a representative body by Divisions 4 and 5
are in addition to, and not instead of, requirements imposed by any other law of
the Commonwealth, a State or Territory.
Combined reports to the Commonwealth Minister
(2) A representative body that has an obligation under another law of the
Commonwealth to give a report to the Commonwealth Minister may include as a part
of that report a report that it is obliged to give to the Minister under
Division 5. However, that part must be identified in the report as a report
under Division 5.
A person is guilty of an offence if the person:
(a) makes a statement or presents a document in or in connection with an
application to ATSIC for a grant under section 203C; and
(b) does so knowing that the statement is, or that the document contains
information that is, false or misleading in a material particular.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
34 Paragraph 214(a)
Omit “202(1),”.
35 At the end of paragraph
214(b)
Add “, 203AE, 203AF or 203AG or subsection 203AH(2)”.
36 At the end of section
215
Add:
Transitional or saving provisions
(4) Without limiting subsection (1), the regulations may make such
transitional or saving provisions as are necessary or convenient as a result of
the recognition of representative Aboriginal/Torres Strait Islander bodies being
withdrawn under section 203AH.
37 Section 253 (definition of representative
Aboriginal/Torres Strait Islander body)
Omit “that is the subject of a determination under subsection 202(1)
or”.
Note: This amendment will have the effect that, when this
Part commences, representative bodies under subsection 202(1) will no longer be
representative bodies.
1 At the end of the Act
Add:
Note: This Schedule lists things that are covered by the
expression Scheduled interest (see section 249C).
A lease for special purposes under section 30 of the Crown Lands
Occupation Act 1861.
(1) A conditional lease under the Crown Lands Act 1884.
(2) A special lease under section 89 of the Crown Lands Act
1884.
(3) A special lease under section 90 of the Crown Lands Act 1884
that permits the lessee to use the land or waters covered by the lease solely or
primarily for any of the following:
|
agriculture; bakery; bee and poultry farm; boiling down works; brick-kiln;
bridge; building or repairing ships or boats; construction of a drainage canal;
construction of an irrigation canal; cricket; cultivation of eucalyptus;
dairying; dam; erection of machinery; factory; ferry; freezing works; graving
dock; inn; irrigation or drainage canal; lime-kiln; mail station; night soil
depot; nursery garden; patent slip; pig and poultry farm; punt-house; residence;
saw-mill; sericulture; sheep and cattle yard; show ground; site for storage of
explosives; skin drying and skin packing; slaughterhouse; slaughterhouse
accommodation paddock; smelting works; smithy; storage; store; tank; tannery;
tobacco growing; tramway; vegetable garden; wattle growing; well; wharf; wool
washing establishment. |
(4) A special lease under section 92 of the Crown Lands Act 1884
that permits the lessee to use the land or waters covered by the lease solely or
primarily for any of the following:
(a) irrigation or drainage canals;
(b) forming and maintaining tramways and crossings and other necessary
approaches and works in connection with forming and maintaining tramways and
crossings.
(1) A residential lease (whether an original or an additional holding)
under section 48 of the Crown Lands Act 1889, section 50 of the Crown
Lands Act 1895 or section 80 of the Crown Lands Consolidation Act
1913.
(2) A homestead selection or grant (whether an original or an additional
holding) under the Crown Lands Act 1895 or the Crown Lands
Consolidation Act 1913.
(3) A settlement lease (whether an original or an additional holding)
under the Crown Lands Act 1895 or the Crown Lands Consolidation Act
1913, other than a lease that:
(a) permits the lessee to use the land or waters covered by the lease
solely or primarily for grazing or pastoral purposes; and
(b) does not permit the lessee to use the land or waters solely or
primarily for agriculture, horticulture, cultivation, or a similar
purpose.
(4) A lease under section 23 of the Western Lands Act 1901 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for any of the following:
|
agriculture or any similar purpose; agriculture (or any similar purpose)
and grazing combined; mixed farming or any similar purpose other than
grazing. |
(5) A conditional lease under the Western Lands Act 1901 or the
Crown Lands Consolidation Act 1913.
(6) A special lease under section 28A of the Western Lands Act 1901
or section 75 or 75B of the Crown Lands Consolidation Act 1913 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for a business purpose of any of the following:
|
accommodation building; bus depot; cafe; caravan and camping park; concrete
batching plant; factory; feedlot; fish marketing and processing; fuel depot;
garage; holiday accommodation; hospital; hotel; kiosk; manufacturing works;
marina; motel; motor repair facility; nursing home; office accommodation; oyster
depuration; oyster processing; processing plant; restaurant; retail shop;
retirement village; service station; showroom; storage; tourist accommodation
and facilities; workshop. |
(7) A special lease under section 28A of the Western Lands Act 1901
or section 75 or 75B of the Crown Lands Consolidation Act 1913 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for a waterfront business of a marina, slipway, retail shop or food
sales.
(8) A special lease under section 28A of the Western Lands Act 1901
or section 75 or 75B of the Crown Lands Consolidation Act 1913 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for any of the following:
|
abattoirs accommodation paddock; abattoirs and resting paddock;
accommodation house; aerodrome; agriculture; agriculture or any similar purpose;
agriculture (or any similar purpose) and grazing combined; archery ground;
bakery; basketball court; bee and poultry farm; boatshed; boiling down works;
bowling green; brick kiln; bridge; building and repairing boats; building and
repairing boats or ships; building or repairing of ships; bushfire brigade
facilities; cable station; church and school site; community centre;
construction of drainage canal; construction of irrigation canal; council
chambers; council depot; council office; coursing ground and plumpton; cricket;
cultivation; cultivation of eucalyptus; Country Women’s Association rest
rooms; dairying; dam; dam, weir or tank; day care centre; depot; dog and animal
pound; dog racing course; domestic garden; driver training ground; equestrian
grounds; erection of building; erection of coke oven; erection of dwelling;
erection of machinery; factory; feedlot; ferries; freezing works; golf course;
graving dock; gymnasium; horse racing course; horticulture; inn; kindergarten;
land-based aquaculture; library; lime-kiln; mail station; manufacture of
eucalyptus oil; market garden; mixed farming or any similar purpose other than
grazing; motel; motor car and bike racing track; motor sports activities and
facilities; neighbourhood depot; night soil depot; nursery garden; orchard;
parking area; patent slip; pig and poultry farm; piggery; planting; poultry
farm; power house, engine house, boiler house, bathroom, loading facilities or
coal washery in connection with coal mining; pre-school; punt house; railway
siding; railway station and depot; reclamation; refreshment room; refuse tip
site; research centre; residence; residential development; residential
subdivision; retirement village; rifle and pistol range; sale yard; sawmill;
school and church site; school or other educational institution; septic tank;
sericulture; sewage farm; sheep and cattle yard; showground; site for storage of
explosives; skin drying and skin packing; slaughterhouse or abattoirs
accommodation paddock; slaughterhouse; slip; smelting works; smithy; sporting
club building; sporting ground; sporting ground and facilities; stable; storage
of explosives; storage purposes; store; sugar cane growing; surf life saving
club; swimming pool; tank; tannery; telecommunications or broadcasting tower,
mast or building; tobacco growing; tramway; tree farming; vegetable garden;
vegetable garden and nursery; velodrome; vineyard; volunteer rescue facilities;
waste depot; water race; water storage; wattle growing; weighbridge; well;
whaling station; wharf; wool washing establishment. |
(9) A conditional purchase lease (whether an original or an additional
holding) under the Crown Lands (Amendment) Act 1905 or the Crown Lands
Consolidation Act 1913.
(10) A Crown lease (whether an original or an additional holding) under
the Crown Lands (Amendment) Act 1912 or the Crown Lands Consolidation
Act 1913, other than a lease that:
(a) permits the lessee to use the land or waters covered by the lease
solely or primarily for grazing or pastoral purposes; and
(b) does not permit the lessee to use the land or waters solely or
primarily for agriculture, horticulture, cultivation, or a similar
purpose.
(11) A suburban holding (whether an original or an additional holding), a
town land lease within an irrigation area, a homestead farm (whether an original
or an additional holding), an irrigation farm lease or a non-irrigable lease,
under the Crown Lands (Amendment) Act 1912 or the Crown Lands
Consolidation Act 1913.
(12) A week-end lease under the Crown Lands Consolidation Act
1913.
(13) A special conditional purchase lease (whether an original or an
additional holding) under the Crown Lands Consolidation Act
1913.
(14) A lease under section 69A of the Crown Lands Consolidation Act
1913 that permits the lessee to use the land or waters covered by the lease
solely or primarily for any of the following:
|
army depot; artillery range; beacon site; bombing range; firing range;
lighthouse; naval facilities; pilot station; pistol range; quarantine station;
rifle range; Royal Australian Air Force base; telecommunications or broadcasting
tower, mast or building; training facility. |
(15) A special lease under section 74 of the Crown Lands Consolidation
Act 1913 that permits the lessee to use the land or waters covered by the
lease solely or primarily for any of the following:
|
artificial reef; boatshed; building and repairing boats; dam; erection of a
building; erection of machinery; floating dock; jetty; pier; reclamation;
waterfront business for the purpose of a marina, retail shop, restaurant or boat
repairs; whaling station; wharf. |
(16) A special lease under section 76 of the Crown Lands Consolidation
Act 1913 that permits the lessee to use the land or waters covered by the
lease solely or primarily for any of the following:
|
irrigation or drainage canal; forming and maintaining tramways and
crossings and other necessary approaches and works in connection with forming
and maintaining tramways and crossings. |
(17) A lease of town land under section 82A of the Crown Lands
Consolidation Act 1913.
A lease under section 4 of the Returned Soldiers Settlement Act
1916.
A group purchase lease, closer settlement lease or settlement purchase
lease, under the Closer Settlement Amendment (Conversion) Act
1943.
A lease under section 34 of the Crown Lands Act 1989 that permits
the lessee to use the land or waters covered by the lease solely or primarily
for any of the following:
|
agriculture; aquatic centre; boatshed; building for the use of charitable
or community service organisation; bushfire brigade facilities; cafe; caravan
and camping area; childcare facilities; commercial retail purposes; community
centre; council depot; day care centre; equestrian centre; factory; feedlot;
golf course; hotel; industrial depot; kindergarten; kiosk; library; marina;
motel; office accommodation; registered club; residential purposes; restaurant;
rifle and pistol range; sporting club; sporting ground; sporting ground and
facilities; storage area; telecommunications or broadcasting tower, mast or
building; tennis court; tourist accommodation and facilities; volunteer rescue
facilities; youth organisation facilities. |
(1) A lease under subsection 11(3) of the Kosciusko State Park Act
1944.
(2) A lease under paragraph 30(1)(a) or (b) of the National Parks and
Wildlife Act 1967.
(3) A lease under paragraph 151(1)(a), (b), (c), (d) or (e) of the
National Parks and Wildlife Act 1974.
A lease under section 5 of the Public Parks Act 1854, section 6 of
the Public Parks Act 1884, section 7 of the Public Parks Act 1902,
Part IIIA or Division 3 of Part IIIB of the Crown Lands Consolidation Act
1913, Schedule 9A to the National Parks and Wildlife Act 1974 or
Division 5 of Part 5 of the Crown Lands Act 1989 that permits the lessee
to use the land or waters covered by the lease solely or primarily for any of
the following:
|
accommodation house; amusement centre; art gallery; boat storage; boatshed;
bowling green; building for use by community and charitable bodies; cafe;
caravan park and camping ground; craft centre; day care centre; dog racing
course and facilities; driver training ground; entertainment centre; football;
golf course; Guide hall; historic building, structure and display; horse racing
course and facilities; jetty; kindergarten; kiosk; launching ramp; marina;
museum; restaurant; retail shop; retirement village; Scout hall; sporting club;
sporting ground; sporting ground and facilities; sports stadium; swimming pool;
tea room; telecommunications or broadcasting tower, mast or building; tourist
information centre; volunteer rescue organisation; wharf; wharf and jetty; youth
club; youth organisation facilities. |
(1) A lease under section XXI, XXIII or XLVII of the Land Act
1862.
(2) A lease under section L of the Land Act 1862 that permits the
lessee to use the land or waters covered by the lease solely or primarily for
the purposes mentioned in subsection 3, 5, 8 or 9 of that section, or for a
bathing house, bridge, ferry, punt house or quay or for depositing
materials.
(3) A lease under section 13 or 38 of the Amending Land Act
1865.
(4) A lease under section 37 of the Amending Land Act 1865 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for the purposes mentioned in subsection 3, 5, 8 or 9 of section L of
the Land Act 1862 or for a bathing house, bridge, ferry, punt house or
quay or for depositing materials.
(5) A lease under section 20, 31, 33 or 46 of the Land Act
1869.
(6) A lease under section 45 of the Land Act 1869 that permits the
lessee to use the land or waters covered by the lease solely or primarily for
the purposes mentioned in subsection (III), (V), (VIII) or (IX) of that section,
or for a bathing house, bridge, ferry, punt house or quay or for depositing
materials.
(7) A lease under section 18, 44, 92 or 94 of the Land Act
1884.
(8) A lease under the Land Act 1884 in accordance with the
conditions contained in a non-residence licence under section 49 of that
Act.
(9) A lease under section 91 of the Land Act 1884 that permits the
lessee to use the land or waters covered by the lease solely or primarily for
the purposes mentioned in subsection (3), (5), (8) or (9) of that section, or
for a bathing house, bridge, ferry, punt house or quay or for depositing
materials.
(10) A lease of an agricultural allotment, or an agricultural lease, under
the Land Act 1884, the Land Act 1890, the Land Act 1898,
the Land Act 1900, the Land Act 1900 (No. 2), the Land Act
1901, the Land Act 1911, the Land Act 1915, the Land Act
1928, the Land Act 1941 or the Land Act 1958.
(11) A lease of drained and reclaimed swamp land under section 85 of the
Land Act 1884, section 85 of the Land Act 1890, section 131 of the
Land Act 1901, section 110 of the Land Act 1915, section 110 of
the Land Act 1928 or section 110 of the Land Act 1958 that permits
the lessee to use the land or waters covered by the lease solely or primarily
for agricultural or residential purposes.
(12) A lease under section 18 or 100 of the Land Act
1890.
(13) A lease under section 97 of the Land Act 1890 that permits the
lessee to use the land or waters covered by the lease solely or primarily for
the purposes mentioned in subsection (3), (5), (8) or (9) of that section, or
for a bathing house, bridge, ferry, punt house or quay or for depositing
materials.
(14) A lease under the Land Act 1890 in accordance with the
conditions contained in a non-residence licence under section 49 of that Act or
section 51 of the Land Act 1898.
(15) A lease of a village community allotment under the Settlement on
Lands Act 1893 or the Land Act 1901.
(16) A lease of a township allotment under the Settlement on Lands Act
1893 or the Land Act 1901.
(17) A lease of a homestead section under the Settlement on Lands Act
1893 or the Land Act 1901.
(18) A lease under section 2 of the Land Act 1896.
(19) A perpetual lease under the Land Act 1898, the Land Act
1900, the Land Act 1900 (No. 2), the Land Act 1901, the
Land Act 1904, the Land Act 1911, the Land Act 1915, the
Land Act 1928, the Land Act 1941, the Land Settlement Act
1953, the Land Settlement Act 1958 or the Land Act 1958, other
than a perpetual lease under Division 3 of Part II of the Land Act
1958.
(20) A conditional purchase lease under the Land Act 1898, the
Land Act 1900, the Land Act 1900 (No. 2), the Land Act
1901, the Murray Settlements Act 1907, the Land Act 1911, the
Land Act 1915, the Land Act 1928, the Land Act 1933, the
Land Act 1941 or the Land Act 1958.
(21) A lease of a grazing allotment under section 61 of the Land Act
1898 or section 56 of the Land Act 1901.
(22) A lease under section 19 of the Land Act 1900.
(23) A lease under section 18, 143, 144, 309, 311, 402 or 411 of the
Land Act 1901.
(24) A lease under the Land Act 1901 in accordance with the
conditions contained in a non-residence licence under section 50 of that
Act.
(25) A lease under section 142 of the Land Act 1901 that permits
the lessee to use the land or waters covered by the lease solely or primarily
for the purposes mentioned in subsection (3), (5), (8) or (9) of that section,
or for a bathing house, bridge, ferry, punt house or quay or for depositing
materials.
(26) A residential lease of a selection purchase allotment,
non-residential lease of a selection purchase allotment, or selection purchase
lease, under the Land Act 1901, the Land Act 1911, the Land Act
1915, the Land Act 1915 (No. 2), the Land Act 1928, the
Land Act 1941 or the Land Act 1958.
(27) A lease under section 28 of the Land Act 1904.
(28) A lease under section 73 of the Land Act 1911.
(29) A lease under section 125 of the Land Act 1915 that permits
the lessee to use the land or waters covered by the lease solely or primarily
for the purposes mentioned in subsection (3), (5), (8) or (9) of that section,
or for a bathing house, bridge, ferry, punt house or quay or for depositing
materials.
(30) A lease under section 127 or 128 of the Land Act
1915.
(31) A lease under section 4 of the Land Act 1915 (No.
2).
(32) A lease under subsection 126(2) or section 127, 128 or 356 of the
Land Act 1928.
(33) A lease under section 125 or 352 of the Land Act 1928 or
subsection 7(2) or section 14 of the Land Act 1941 that permits the
lessee to use the land or waters covered by the lease solely or primarily for
the purposes mentioned in paragraph 125(1)(c), (e), (h) or (i) of the Land
Act 1928, or for a bathing house, bridge, ferry, punt house or quay or for
depositing materials.
(34) A right to occupy a residence area under the Land (Residence
Areas) Act 1935 or the Land Act 1958.
(35) A lease under section 14 of the Land Act 1941 to or by the
holder of a lease under subsection 126(2) or section 127, 128 or 356 of the
Land Act 1928.
(36) A development lease under the Land (Development Leases) Act
1951 or the Land Act 1958.
(37) An improvement purchase lease under the Land (Improvement Purchase
Lease) Act 1956 or the Land Act 1958.
(38) A cultivation lease under section 133B of the Land Act
1958.
(39) A lease under section 134 of the Land Act 1958 that permits
the lessee to use the land or waters covered by the lease solely or primarily
for the purposes mentioned in paragraph (1)(c), (e), (h) or (i) of that section
or for any of the following:
|
Aboriginal health services centre; accommodation and facilities for
tourists; ambulance station; amusement park; bathing house; bowling club;
bowling club and car park; bowls; bridge; car parking; caravan park; caravan
park and camping ground; chair lift; church; clubhouse; clubroom; communications
tower; Country Women’s Association centre; craft centre; creative arts
communication centre; depositing materials; depot; equestrian events; factory;
ferry; ferry terminal; film and performing arts centre; fire station; fish
freezing works; fish processing and freezing; fish processing works; football
club; gas regulating and metering station; Girl Guides hall; gliding club;
gliding field; golf; golf club; golf club house; golf course; golf driving
range; grain testing facility; Guide hall; gun club; hall; harness racing club;
health and fitness club and restaurant; holiday accommodation and agricultural
farming; industrial purposes; industrial storage; jetty pens; lawn tennis club;
line depot; manufacture of industrial accessories; manufacture of salt;
manufacturing and storage; marina; marine education centre; marine operations
terminal; marine workshop and sales; maritime industry warehouse; mobile
telecommunications tower; motor car club; motor cycle club; museum and
interpretive centre; office accommodation; office; pistol club; pistol range;
processing and storage of petrol; processing, freezing and retailing fish;
production of salt; punt house; purification plant; quay; radio relay station;
radio repeater station; radio station; radio telephone and repeaters; radio
transmission tower; radio transmitting station; relay station; retail shopping
centre; rifle range; Returned Services League club; salt extraction; sawmill;
school; Scout hall; sea pilot’s station and amenities; shooting range;
site for a line depot; stadium; storage of materials; telecommunications tower;
television transmitting station; tennis court; tennis courts and clubroom; toll
house; transmission tower; vehicular ferry terminal; warehouse; waste transfer
station; water industry training centre and accommodation; yacht club; yacht
clubhouse and yard. |
(40) A lease under subsection 135(2) or section 136, 137, 151E, 222A, 222B
of the Land Act 1958.
(41) A lease under Subdivision 1 of Division 9 of Part I of the Land
Act 1958 that permits the lessee to use the land or waters covered by the
lease solely or primarily for industrial purposes or for the generation of
electricity for supply or sale.
(42) An industrial lease, industrial purchase lease, or industrial
development lease, under the Land Act 1958.
(1) A lease under section 75 of the Victorian Water Conservation Act
1881.
(2) A lease under section 118 of the Irrigation Act 1886.
(3) A lease under section 68, 243 or 292 of the Water Act 1890,
section 299 of the Water Act 1905, section 299 of the Water Act
1915, section 299 of the Water Act 1928, section 324 of the Water
Act 1958 or section 132 of the Water Act 1989, that permits the
lessee to use the land or waters covered by the lease solely or primarily
for:
(a) agricultural or residential purposes; or
(b) an angling club or the storage and launching of boats.
(4) A lease under section 277 of the Water Act 1890.
(5) A lease under section 213 of the Water Act 1905.
(6) A lease under section 184 of the Water Act 1915.
(7) A lease under section 184 of the Water Act 1928.
(8) A lease under section 200 of the Water Act 1958.
(1) A lease under section 39 of the Forests Act 1918 that permits
the lessee to use the land or waters covered by the lease solely or primarily
for the purposes of a dwelling-house or business premises.
(2) A lease under section 51 of the Forests Act 1958 that permits
the lessee to use the land or waters covered by the lease solely or primarily
for any of the following:
|
cabin accommodation; caravan park; dwelling house; hotel; mobile
communications base station; nursery; preservation of an historic building;
rifle range; saw mill; ski lodge; softwood production; steel tower and storage
shed; telecommunications tower; television transmitter station; training and
research centre; transmission tower. |
(3) A lease under section 51 of the Forests Act 1958 that permits
the lessee to use the land or waters covered by the lease solely or primarily
for the purposes mentioned in paragraph 134(1)(c), (e), (h) or (i) of the
Land Act 1958, or for a bathing house, bridge, ferry, punt house or quay
or for depositing materials.
(4) A lease under section 57B of the Forests Act 1958.
(1) A lease or tenancy under paragraph 19(2)(a) or section 30AA, 32AB or
32B of the National Parks Act 1975.
(2) A tenancy of a building under paragraph 19(2)(b) of the National
Parks Act 1975.
(3) A lease under section 31AA of the National Parks Act 1975 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for the purposes mentioned in paragraph (2)(a) or (c) of that
section.
(4) A tenancy under section 32C of the National Parks Act 1975 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for residential purposes or for erecting, providing or using
particular structures, facilities or equipment in connection with the keeping of
horses or the conduct of a riding school.
(1) A lease under subsection 28(2) of the Alpine Resorts Act 1983
that permits the lessee to use the land or waters covered by the lease solely or
primarily for the purposes mentioned in paragraph (a) or (b) of that
subsection.
(2) A lease under paragraph 28(2)(c) of the Alpine Resorts Act 1983
that permits the lessee to use the land or waters covered by the lease solely or
primarily for a fire station, telecommunications relay station or telephone
exchange.
(3) A lease under section 28A of the Alpine Resorts Act
1983.
(1) A lease under subsection 24(2) of the Royal Botanic Gardens Act
1991 that permits the lessee to use the land or waters covered by the lease
solely or primarily for a kiosk, cafe, restaurant, shop or other outlet
providing refreshment services.
(2) A lease under subsection 24(3A) of the Royal Botanic Gardens Act
1991.
(3) A lease under paragraph 33(2)(a) of the Zoological Parks and
Gardens Act 1995 that permits the lessee to use the land or waters covered
by the lease solely or primarily for a kiosk, cafe, restaurant, shop or other
outlet providing refreshment services.
(1) A settlement interim lease, settlement purchase lease or purchase
lease under the Soldier Settlement Act 1946, the Soldier Settlement
Act 1958, the Land Act 1958, the Land Settlement Act 1959 or
the Rural Finance Act 1988.
(2) A perpetual lease under the North-West Mallee Settlement Areas Act
1948 or Division 3 of Part II of the Land Act 1958, other than a
lease that:
(a) permits the lessee to use the land or waters covered by the lease
solely or primarily for grazing or pastoral purposes; and
(b) does not permit the lessee to use the land or waters solely or
primarily for agriculture, horticulture, cultivation, or a similar
purpose.
(3) A lease under section 43 of the Soldier Settlement Act 1958
pending the grant of an interim lease under that Act.
(4) A temporary lease under the Land Settlement Act 1959.
(5) A lease under section 47 of the Land Settlement Act
1959.
(1) A lease under section 14D, 16, 17C or 17D of the Crown Land
(Reserves) Act 1978 that permits the lessee to use the land or waters
covered by the lease solely or primarily for any of the following:
|
antenna; caravan park; caravan park and camping ground; clubhouse;
curtilage to a dwelling; curtilage to a private club; environmental education
centre; fire tower; golf club; golf course; historic society; house
encroachment; houseboat hire and servicing; kiosk, tea room, fish shop and
jetty; marine research laboratory; mobile communications base station; museum;
museum and interpretative centre; pistol range; pre-school centre; preserving
historic building; public hall; radio transmission tower; rescue station;
residence; sailing school; theatre; water filtration plant; water pump and
underground tank. |
(2) A lease under section 22 or 23 of the Crown Land (Reserves) Act
1978.
(3) A lease under section 29A of the Crown Land (Reserves) Act 1978
that permits the lessee to use the land or waters covered by the lease solely or
primarily for the purposes mentioned in paragraph (1)(b) of that
section.
(1) A lease under section 147 of the Melbourne and Metropolitan Board
of Works Act 1890, section 209 of the Melbourne and Metropolitan Board of
Works Act 1915, section 209 of the Melbourne and Metropolitan Board of
Works Act 1928 or section 235 of the Melbourne and Metropolitan Board of
Works Act 1958 that permits the lessee to use the land or waters covered by
the lease solely or primarily for industrial or residential purposes.
(2) A building or improving lease under section 148 of the Melbourne
and Metropolitan Board of Works Act 1890, section 210 of the Melbourne
and Metropolitan Board of Works Act 1915, section 210 of the Melbourne
and Metropolitan Board of Works Act 1928 or section 236 of the Melbourne
and Metropolitan Board of Works Act 1958 that permits the lessee to use the
land or waters covered by the lease solely or primarily for industrial or
residential purposes.
(1) A lease under section 35 of the Harbor Boards Act 1958,
paragraph 24(2)(b) or 26B(1)(a) or subsection 46(1) of the Port of Geelong
Authority Act 1958, paragraph 50(2)(b) or 56A(1)(a) or section 50A of the
Port of Melbourne Authority Act 1958, paragraph 17A(2)(b) or 17E(1)(a) or
subsection 19(2) of the Port of Portland Authority Act 1958 or paragraph
65(4)(d) of the Port Services Act 1995 that permits the lessee to use the
land or waters covered by the lease solely or primarily for any of the
following:
|
berthing and mooring facilities; jetty; loading and unloading of commercial
shipping; pier and associated rock wall; storage of cargo or storage and
operation of equipment and machinery for shipping operations or launching boats;
wharf. |
(2) A lease under paragraph 24(2)(b) or 26B(1)(a) or subsection 46(1) of
the Port of Geelong Authority Act 1958 that permits the lessee to use the
land or waters covered by the lease for any of the purposes mentioned in
subsection 46(1) of that Act.
(3) A lease under subsection 20(2) or 24(1) of the Docklands Authority
Act 1991 that permits the lessee to use the land or waters covered by the
lease solely or primarily for a shipping terminal, workshop, port services
headquarters or the operation of the Port of Melbourne, or for industrial
purposes.
(1) A lease under section 76 of the Railways Act 1958 that permits
the lessee to use the land or waters covered by the lease solely or primarily
for cultivation, for grazing and cultivation, or for residential
purposes.
(2) A lease under paragraph 41(1)(a) of the Emerald Tourist Railway Act
1977 of a refreshment room, shed, office, shop, house, stall or other
building, of a site for the erection of a refreshment room, shed, office, shop,
house, stall or other building, or for storage.
(3) A lease under subparagraph 21(1)(f)(i) of the Railway Construction
and Property Board Act 1979 that permits the lessee to use the land or
waters covered by the lease solely or primarily for industrial or residential
purposes.
(4) A lease or tenancy under subsection 25(3) or 26(1) of the Railway
Construction and Property Board Act 1979.
(5) A lease under paragraph 47(2)(b) of the Transport Act 1983 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for cultivation, for grazing and cultivation, or for residential
purposes.
(1) A lease under section 17 or 20A of the Education Act 1958 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for a cultural centre, sports ground, school or other educational
institution.
(2) A lease under section 3 of the Land (Surf Life Saving Association)
Act 1967.
(3) A lease under subsection 7(2) or paragraph 15(1)(f) of the
Albury-Wodonga Agreement Act 1973 that permits the lessee to use the land
or waters covered by the lease solely or primarily for agricultural or
residential purposes.
(4) A lease or tenancy under paragraph 6(2)(a) of the Melbourne
Wholesale Fruit and Vegetable Market Trust Act 1977 or paragraph 7(2)(a) of
the Melbourne Market Authority Act 1977 that permits the lessee to use
the land or waters covered by the lease solely or primarily for storing,
distributing or selling vegetables, fruit, flowers or other produce.
(5) A lease under paragraph 13(1)(i) of the Government Employee Housing
Authority Act 1981.
(6) A lease under section 128K of the Casino Control Act
1991.
(7) A lease under paragraph 24(1)(b) of the Melbourne Sports and
Aquatic Centre Act 1994, or a lease deemed to be granted under subsection
24(2) of that Act, that permits the lessee to use the land or waters covered by
the lease solely or primarily for sport or gaming activities or an entertainment
centre.
(8) A lease under section 7 of the Australian Food Industry Science
Centre Act 1995 that permits the lessee to use the land or waters covered by
the lease solely or primarily for agricultural research.
(1) A lease under section XII of the Alienation of Crown Lands Act
1860.
(2) A lease under section 51 of the Crown Lands Alienation Act
1868.
(3) A special lease under section 69 of the Crown Lands Alienation Act
1868, section 70 of the Crown Lands Alienation Act 1876 or section
188 of the Land Act 1897.
(4) A lease under the Gold Fields Town Lands Act 1869.
(5) A lease under section 28 of the Crown Lands Alienation Act
1876.
(6) A perpetual town allotment lease under the Land Act
1897.
(7) A perpetual suburban allotment lease under the Land Act
1897.
(8) A lease under section 119A of the Land Act 1910.
(9) A lease under subsection 185(2) of the Land Act 1910, section
343 of the Land Act 1962 or subsection 57(1) of the Land Act 1994,
a special lease under the Land Act 1910 or the Land Act 1962, a
lease for a term of years or a perpetual lease under section 22B of the State
Housing Act 1945, or a term lease or perpetual lease under the Land Act
1994, that permits the lessee to use the land or waters covered by the lease
solely or primarily for any of the following:
|
abattoir; accommodation; accommodation paddock adjoining an abattoir;
aerodrome; aeromodellers club; aged persons’ home; agricultural and
horticultural society showground; agriculture; air traffic control facilities;
aircraft hangar site; aircraft hangar, repair and administration building;
aircraft landing ground; airfield; airstrip; airstrip and terminal; all sports
complex; amphitheatre; amusement and entertainment park and pub; animal refuge
boarding kennel; animal refuge home; Apex club; archery club; archery range;
arts and craft centre; automatic telephone exchange; aviation building; band
hall site; bank; basketball; basketball club; basketball court; beacon; boat
building; boat hire; boat pilot base and wharf; boat ramp; boat repair; boat
sales; boat shed; boating and fishing club; bowhunting; bowhunting club;
bowhunting range; bowling club; bowling green; bowls club; Boy Scouts hall; Boys
Brigade hall; British Australian club; broadcasting tower, mast or facility;
building encroachment; building or repairing boats; bulk fuel depot; bulk
storage; bulk storage depot; burning of sawmill waste; bus depot; butchery;
cafe; cafeteria; cane employees’ accommodation; car parking; car storage;
car wrecking yard; caravan park; catamaran club; cattle transport depot or yard;
causeway; change rooms and associated facilities; charitable organisation; child
care centre; church; church and church hall; church school; city band hall;
civil aviation anemometer site; civil aviation visual omni range; clubhouse;
clubhouse for the Grand Lodge of the Royal Antediluvian Order of Buffaloes;
coast guard facilities; coffee growing; coffee shop; coke works; commercial
building development; communal bore; communal dam; communal storage building;
communal tank; community centre; compressor station site; concrete batching
plant; concrete manufacturing and storage of earthmoving equipment;
conservatorium of music; coral art display and sales shop and residence; coral
art display and sales shop or centre; crane hire; cricket; cricket club; cricket
ground; cricket ground and grandstand; crocodile farm; croquet club; croquet
pitch; culture centre; dairy; dam; dam site and agriculture; dance hall; dart
playing hall; delicatessen-snack bar; depot; development office; dining hall;
dip site; dog training; drive-in picture theatre; driver training; drug and
alcohol rehabilitation centre; dry dock; educational institution; electricity
generator and depot; electricity substation; electricity transmission tower;
elevated passenger cable way pylons and building; Endeavour workshop;
engineering workshop; equestrian and general sporting purposes; equestrian club;
equestrian field; equestrian or pony field; explosive magazine; explosive
manufacture, testing and storage; export game meat receival and kangaroo pet
food depot; fast food outlet; feed lot; ferry terminal; fertiliser storage
depot; fibre board plant; field archery range; fire brigade station; fire
observation tower; fish depot; fishing club; flood mitigation dam or canal;
flying field and soaring/gliding building; football; football club; football
ground; freight terminal and barge ramp; fruit growing; fruit storage; fuel and
garage facilities; fuel depot; fuel storage; game collection centre; game
fishing club; garage; gas compressor; gas offtake and pressure regulating
system; gas storage tank; gas treatment plant; general engineering workshop;
general store; Girl Guides hall; golf club; golf course; golf links; grain
handling facilities; grain storage depot; gravel treatment; grazing and
horticulture; grocery shop; gun club; heavy engineering and fabrication; helipad
site; historical museum; hockey club; hockey pitch; holiday unit; home unit;
horse and pony club; horse stabling; horticulture; hostel; hotel; hotel-casino;
housing purposes; indoor sports centre; industrial development; industrial
purposes; Jaycees room; jetty; judo; kindergarten; kiosk; knackery; land-based
aquaculture; land-based aquaculture inlet canal; land-based mariculture;
licensed club; light industrial purposes; lighthouse; line depot; log storage;
lot feeding; machinery shed; machinery storage; maintenance depot;
manufacturing; marina; marine stadium; marine workshop and slipway; market
garden; market gardening; Masonic lodge; mechanical workshop; medical centre;
memorial club; metal fabrication; microwave radio feeder station; microwave
radio tower, mast or building; microwave repeater station; milk depot; mobile
telecommunications tower, mast or building; mobile two way radio tower, mast or
building; monorail train operation; motel; motocross track; motorbike sales and
service; motorbike track; motor club; motorcycle club; motorcycle raceway; motor
raceway; motor racing; motor sports; multi-unit residential development;
multi-purpose family centre; music hall; netball; netball club; netball court;
newsagency; nursery; office; offtake and pressure regulating station; oil depot;
on-shore boat house; optical fibre repeater station; orchard; pharmacy; piggery;
pine plantation; pipe band hall; pistol club; pistol range; plant nursery;
playground; Police Citizens Youth Club; polocrosse; polocrosse club; polocrosse
field; pony club; pony field; post office; pottery club; power and sailing boat
club and launching, storage and preparation area; power station; power
substation; prawn receiving depot; pre-school; preparation and distribution of
meals; private school; produce store; professional fishing base, building and
wharf; Progress Association hall; pump site and agriculture; pump station;
pumping plant; pumping station; quarry depot; racecourse; racecourse and
showground; radio communication tower, mast or building; radio station; radio
telephone station; radio transmitter; radio-telephone transmitter; rail
transport infrastructure; railway; railway loop and train loading facilities;
reclamation; repeater station; residential building development; residential
flats; residential purposes; restaurant; restoration of historical structure and
tourist accommodation and facilities; retail liquor outlet; retail shopping;
retail shops and/or commercial office; retirement village; Returned Services
League club; rice growing and small crops; rifle club; rifle range; roadhouse;
roadside stall; rodeo ground; rowing club; rugby league clubhouse; rural
training school; rural youth hall; sailing club; saleyard; salt production; sand
blasting workshop; sawmill; sawmill products storage; school; school playground;
sea cadets hall; secondary school; seed storage; service and maintenance depot;
service station; settling pond; sewage disposal; sewage treatment plant; sewage
treatment works; shed; shooting range; shop premises; shopping centre; shopping
complex; shop; show society and associated sporting ground; showground;
showroom; single person’s quarters; skating rink; skeet shooting range;
ski club; slaughterhouse; sleeper sawmill; slipway and associated facilities;
small bore rifle range; soccer club; speedway and associated purposes; sporting
complex; sporting field; sports club or complex; sports ground, field, pitch,
stadium or oval; spray painting and mechanical repair; spraypainting; squash
court; State Emergency Service purposes; stockpiling gravel; stockpiling sand
and gravel; stock trucking yard; storage and milling of rice; storage of boats;
storage of containers; storage of electrical equipment; storage of ilmenite;
storage of plant and machinery; storage shed; sugar cane growing; sugar mill
pumping site; sugar storage; supermarket; surf life saving facility; swimming
club; swimming pool; tank site; tannery; tannery and knackery; target
bowhunting; telecommunications tower, mast or building; telephone optical fibre
repeater site; television tower site; television translator; television
transmitting tower, mast or building; tennis club; tennis court; theatre;
theatre or hall; timber storage; timber yard; tobacco growing; toll bridge;
tourist accommodation; tourist accommodation and facilities; train loading
facilities; tramway; tramway loading siding; transformer site; translator
broadcasting station; transport depot; transport terminal; travel agency;
tropical science field station; truck and machinery depot; trucking depot;
trucking yard; union office and associated facilities; vehicle parking; vehicle
service and maintenance; vehicle traffic ramp and loading dock; vehicle wrecking
yard; vehicles and machinery depot; vineyard; voltage regulator site; war
graves; war veterans’ home; warehouse; warehouse storage; water activity
centre for Scouts; water bore site; water dissipation plant; water pumping
station; water ski club; water storage facilities; waterfront shop; weighbridge;
welding workshop; well site; wheat storage and handling depot; wheat storage
shed or silo; wholesale plant nursery; workers’ accommodation and
marshalling yard; workshop; workshop for handicapped persons; yacht club; youth
hall. |
(10) A development lease under the Crown Land Development Act 1959
or the Land Act 1962 that permits the lessee to use the land or waters
covered by the lease solely or primarily for manufacturing, business,
industrial, residential or tourist and recreational purposes.
(1) A freeholding lease under the State Housing Act 1945.
(2) A grazing homestead freeholding lease under the Land Act 1962
or the Land Act 1994.
(3) A freeholding lease as defined in Schedule 6 to the Land Act
1994.
(1) A homestead lease under the Gold Fields Homestead Act 1870, the
Gold Fields Homestead Leases Act 1886 or the Mineral Homesteads Leases
Act 1891.
(2) A homestead selection under the Homestead Areas Act 1872 or the
Crown Lands Alienation Act 1876.
(3) An agricultural homestead under the Land Act 1897, the
Special Agricultural Homesteads Act 1901 or the Land Act
1910.
(4) A free homestead under the Land Act 1897 or the Land Act
1910.
(5) A miner’s homestead perpetual lease under the Miners’
Homestead Leases Act 1913.
(6) A miner’s homestead lease under the Miners’ Homestead
Leases Act 1913, the Mining Act 1898 or any Act repealed by the
Mining Act 1898.
(7) A grazing homestead under the Upper Burnett and Callide Land
Settlement Act 1923.
(8) A grazing homestead perpetual lease under the Land Act
1962.
(1) A settlement farm lease under the Closer Settlement Act 1906,
the Land Act 1910, the Brigalow and Other Lands Development Act
1962, the Land Act 1962 or the Irrigation Areas (Land Settlement)
Act 1962.
(2) A designed settlement farm lease under the Land Act
1910.
An agricultural farm under the Crown Lands Act 1884, the
Agricultural Lands Purchase Act 1894, the Agricultural Lands Purchase
Act 1897, the Land Act 1897, the Special Agricultural Selections
Act 1901, the Closer Settlement Act 1906, the Land Act 1910,
the Brigalow and Other Lands Development Act 1962, the Irrigation
Areas (Land Settlement) Act 1962 or the Land Act 1962.
A perpetual lease selection under the Land Act 1897, the Closer
Settlement Act 1906, the Land Act 1910, the Discharged
Soldiers’ Settlement Act 1917, the Upper Burnett and Callide Land
Settlement Act 1923, the Sugar Workers’ Perpetual Lease Selections
Act 1923, the Tully Sugar Works Area Land Regulations Ratification Act
1924, the Irrigation Acts Amendment Act 1933, the Brigalow and
Other Lands Development Act 1962, the Irrigation Areas (Land Settlement)
Act 1962 or the Land Act 1962.
(1) A perpetual town lease, including an auction perpetual lease that is a
perpetual town lease, under the Closer Settlement Act 1906, the Land
Act 1910, the Discharged Soldiers’ Settlement Act 1917, the
Workers’ Homes Act 1919, the Tully Sugar Works Area Land
Regulations Ratification Act 1924, the Irrigation Acts Amendment Act
1933, the State Housing Act 1945, the Irrigation Areas (Land
Settlement) Act 1962 or the Land Act 1962.
(2) A perpetual town lease without competition under the Land Act
1910, the Irrigation Areas (Land Settlement) Act 1962 or the City
of Brisbane (Flood Mitigation Works Approval) Act 1952.
(3) A perpetual town lease (non-competitive lease) under the Irrigation
Areas (Land Settlement) Act 1962 or the Land Act 1962.
(1) A perpetual suburban lease, including an auction perpetual lease that
is a perpetual suburban lease, under the Closer Settlement Act 1906, the
Land Act 1910, the Discharged Soldiers’ Settlement Act 1917,
the Workers’ Homes Act 1919, the Tully Sugar Works Area Land
Regulations Ratification Act 1924, the State Housing Act 1945, the
Irrigation Areas (Land Settlement) Act 1962 or the Land Act
1962.
(2) A perpetual suburban lease without competition under the Land Act
1910, the Irrigation Areas (Land Settlement) Act 1962 or the City
of Brisbane (Flood Mitigation Works Approval) Act 1952.
(3) A perpetual suburban lease (non-competitive lease) under the
Irrigation Areas (Land Settlement) Act 1962 or the Land Act
1962.
(1) A perpetual country lease, including an auction perpetual lease that
is a perpetual country lease, under the Closer Settlement Act 1906, the
Land Act 1910, the Tully Sugar Works Area Land Regulations
Ratification Act 1924, the Irrigation Areas (Land Settlement) Act
1962 or the Land Act 1962.
(2) A perpetual country lease without competition under the Land Act
1910 or the City of Brisbane (Flood Mitigation Works Approval) Act
1952.
(3) A perpetual country lease (non-competitive lease) under the
Irrigation Areas (Land Settlement) Act 1962 or the Land Act
1962.
(1) A prickly pear frontage selection under the Land Act
1897.
(2) A prickly pear infested selection under the Land Act
1897.
(3) A prickly-pear selection under the Prickly Pear Selections Act
1901 or the Land Act 1910.
(4) A perpetual lease prickly-pear development selection under the Land
Act 1910 or the Prickly-pear Land Acts Amendment Act 1930.
(5) A prickly-pear development selection under the Land Act 1910 or
the Prickly-pear Land Acts Amendment Act 1930.
(1) Any special lease granted to Amoco Australia Pty Limited under clause
3 of the Agreement that is given the force of law by section 3 of the Amoco
Australia Pty Limited Agreement Act 1961.
(2) The lease granted to Austral-Pacific Fertilizers Limited under clause
4(b) or 4(c) of the Agreement that is given the force of law by section 3 of the
Austral-Pacific Fertilizers Limited Agreement Act 1967.
(3) Any special lease granted to Austral-Pacific Fertilizers Limited under
clause 4(d) of the Agreement that is given the force of law by section 3 of the
Austral-Pacific Fertilizers Limited Agreement Act 1967.
(4) The special lease granted to the Gateway Bridge Company Limited under
clause 1(5) of Part III of the Agreement that is given the force of law by
section 4 of the Gateway Bridge Agreement Act 1980.
(5) The special lease granted to the Sunshine Motorway Company Limited
under clause 1(4) of Part III of the Agreement that is given the force of law by
section 4 of the Motorways Agreements Act 1987.
(1) A lease under the Leasing Act 1866.
(2) A lease under the Gold Fields Homestead Act Amendment Act
1880.
(3) An unconditional selection under the Crown Lands Act 1891, the
Land Act 1897, the Closer Settlement Act 1906 or the Land Act
1910.
(4) A designed agricultural selection under the Land Acts Amendment Act
1952.
(5) A perpetual lease under section 8 of the Clermont Flood Relief Act
1917.
(6) A sugar workers’ agricultural farm under the Tully Sugar
Works Area Land Regulations Ratification Act 1924.
(7) A lease under section 64A of the Harbours Act 1955.
(8) A purchase lease under the Brigalow and Other Lands Development Act
1962.
(9) An auction purchase freehold under the Land Act 1962, including
a lease under section 176 of that Act.
(10) A special lease purchase freehold under the Land Act 1962,
including a lease under subsection 207(7) of that Act.
(11) A sub-lease under subsection 6A(2) of the Industrial Development
Act 1963.
(12) A lease under paragraph 24(b) of the Industrial Development Act
1963.
(13) A mining titles freeholding lease under the Mining Titles
Freeholding Act 1980.
(1) A lease of town land under the Land Regulations 1829 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for residential purposes.
(2) A lease of special occupation land under the Land Regulations
1872.
(3) A conditional purchase lease under clause 46, 47, 48, 49, 50, 52 or 53
of the Land Regulations 1887.
(4) A lease under subsection 12(5) of the Mineral Lands Act
1892.
(5) A homestead farm under the Homesteads Act 1893.
(6) A homestead lease under the Homesteads Act
1893.
(7) A lease under the Agricultural Lands Purchase Act
1896.
(1) A lease under section 41a of the Land Act 1898 that permits the
lessee to use the land or waters covered by the lease solely or primarily for
any of the following:
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agriculture; artificial limb factory; bakehouse and store; boarding house;
boat repairing and shed for crews; bowling green; brickmaking; brine evaporation
plant; cultivation; dairying; experimental cultivation; experimental gardening
purposes; fish curing, canning and manufacture of by-products; fruit and
confectionary shop; golf links; hospital site; manure and cement factory; market
garden; pig and poultry farm; post office; residential purposes; sandalwood
stack and store; slaughter yard; stable and storage yard; stacking firewood;
stacking telegraph poles; store and dwelling; tramway and timber yard; tropical
agriculture; vegetable growing; veterinary hospital. |
(2) A lease under section 152 of the Land Act 1898 that permits the
lessee to use the land or waters covered by the lease solely or primarily for
the purposes mentioned in subsection (3), (5), (8), (12) or (13) of that
section.
(3) A lease under section 152 of the Land Act 1898 that permits the
lessee to use the land or waters covered by the lease solely or primarily for
any of the following:
|
artificial lake; bathing house; billiard room; blacksmith and wheelwright
shop; boarding house; boat building, fish canning and horse paddock; boat shed;
bone crushing mill; brick kiln; bridge; building and repairing boats; butchering
and slaughtering; canning and preserving works; cement works; chemical works;
church site; clayhole and brick kiln; collection in catchment ditches and
manufacture of salt; cultivation; cultivation of tobacco; dairying; depositing
of materials; depot for sponge fishery; explosives magazine; factory site;
ferry; fertiliser factory; fire brick manufacture; fishing station; foundry;
gardening; growing cotton; hotel site; inn and general store; jetty site; land
base for pearling activities; landing and packing pearl shell; laying up,
repairing and fitting pearling vessels; lime burning; lime kiln; machinery
depot; manufacturing aerated water; manufacturing plaster of paris and manure;
manufacturing white lead; market garden; mixed gardening; monumental site; news
and general agent; permanent pearling camp accommodation; piggery; poultry farm;
preserving fish; private hospital; pumping station; punt house; quay; repairing
luggers; residence; residential purposes; rope and twine factory; sanitary plant
and stable; school; sheep dip; site for stores, dwelling or jetty; skating rink;
slaughter yard; slipway for boats; stock yard; storage of fodder; storage of
sandalwood; store and garden; store site; storing brewery requisites; tea and
refreshment rooms; tennis club; tile factory; toll house; tramway siding;
whaling factory; whaling station; wharf; wood shed; wool scouring shed; yacht
clubhouse; yard for horses. |
(4) A lease of town or suburban land under section 153 of the Land Act
1898 that permits the lessee to use the land or waters covered by the lease
solely or primarily for residential purposes.
(5) A lease under section 153a of the Land Act 1898.
(6) A homestead farm under the Land Act 1898 or the Land Act
1933.
(7) A conditional purchase lease under Part V or VI of the Land Act
1898 or Part V of the Land Act 1933.
(8) A lease of special settlement land under the Land Act 1898 or
the Land Act 1933.
(9) A lease of a working man’s block under the Land Act 1898
or the Land Act 1933.
(10) A lease under subsection 32(1) of the Land Act 1933 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for any of the following:
|
aerodrome; agriculture; angling clubhouse; aviary; boat shed; building;
bulk wheat storage; caravan park; children’s playground; concrete batching
plant and stockpiling metal products; constructed stock and domestic water
supply facility; cropping; cultivation; field laboratory for rock lobster
research; fishing depot, building, repairing and hiring of boats, and petrol
service station; fishing station; freezer works and residence; fuel depot;
garage and building; garden and parking area; garden and poultry raising; golf
links; holiday campsite consisting of residential buildings; hotel; land-based
experimental aquaculture; lighthouse; market garden; monumental works; office
extension; plant for treatment of mineral bearing earth; pound; radio
translator; residence; residence, garden and apiary; rest room; rifle range;
road train access and turn around area; sawmill; service station; shore whaling
station; siding for delivery of wheat; slaughter yard; stock holding paddock
adjoining transport facilities for stock awaiting transportation; stock holding
paddock for abattoir; storage; storage of implements and vehicles; storage of
manganese ore; storage of ore; taxi rank; timber mill; timber storage; transport
depot; trotting racecourse; vehicle parking; weighbridge; woodyard. |
(11) A lease under subsection 33(3) of the Land Act 1933 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for any of the following:
|
aerial landing ground; aged persons’ home; bulk grain terminal;
church; foreshore amusement park; livestock sales and produce processing; play
group facilities; residential purposes; restaurant; rifle range; surf life
saving club. |
(12) A lease under section 116 of the Land Act 1933 that permits
the lessee to use the land or waters covered by the lease solely or primarily
for the purposes mentioned in subsection (3), (5), (8), (12) or (13) of that
section.
(13) A lease under section 116 of the Land Act 1933 that permits
the lessee to use the land or waters covered by the lease solely or primarily
for any of the following:
|
abattoir; accommodation; accommodation and other buildings associated with
the cultured pearl industry; aerial landing ground; agriculture; airstrip;
airstrip and fishing base; angling clubhouse; aquatic centre; arboretum; auto
repair business; automotive metal product fabrication; aviary; base for offshore
petroleum operations; bistro-brasserie; boat pen and jetty site; boat shed;
bombing range; brick kiln; brickworks; brine catchment ditches; broadcasting and
television tower and associated buildings; bulk fuel depot; bulk oil
installation; bus depot; cafe; camel farm; camping and caravan park; car club;
caravan and chalet park; caravan park; caravan park extension; church; church
and church hall; church site; collection in catchment ditches and manufacture of
salt; commercial snail farming; commercial tropical agriculture or horticulture;
community theatre; company housing and recreation; company housing or
accommodation; concrete batching and stockpiling of metal products; concrete
batching plant; contractors’ accommodation; conveyor belt; crocodile farm;
cropping; cropping and grazing; cropping, grazing and private airstrip;
cultivation and grazing; cultivation of plants for pharmaceutical purposes; dam;
depositing of materials; depot; depot or storage; dwelling; effluent disposal;
equestrian centre; explosive storage and manufacture; extension to commercial
premises; extension to timber mill; factory; ferry; field laboratory associated
with marine research; fire station; fish processing; fishing base; fishing
holiday accommodation; garden; garden and tennis court; garden nursery; gas
processing plant; gas production facility; general industry and staff
accommodation; grain receival depot; grain storage; grazing and agriculture;
group housing; hall; hall and place of worship; heated swimming pool; holiday
and tourist resort fishing station; homestead and tourist facility; homestead
tourist facilities; horse stable; horse yard; hotel; hotel extension; hotel,
motel and service station; housing for workforce; hydroponic vegetable garden;
industrial purposes; industrial storage; intensive horticulture; jetty; land
base associated with pearl oyster hatchery or pearling activities; land base
associated with pearling; land base for fishing industry; land-based
aquaculture; land-based experimental aquaculture or oyster hatchery; land-based
oyster nursery; land-based pearl farming; land-based scallop/oyster farm;
landing ground for aircraft; landscape gardening supplies business; light
industrial purposes; light industry; lighthouse; lime burning; lime crushing;
loading and unloading stock; lobster receival depot; manganese road train
assembly area; manse; manufacture and storage of concrete products; manufacture
of salt; market garden; market garden and residence; mechanical workshop;
meteorological station; mill; motel; motel and service station; motel unit
development; motor cross speedway; motorcycle clubhouse; non-irrigated
agriculture; noxious industry; office accommodation; office accommodation and
storage; office and employee accommodation; oil storage depot; parking; parking
and maintenance of vehicles; parking and spraying of machinery; parking and
storage; permanent mining camp accommodation; pig farm; pistol club; plant
nursery; potato growing; poultry farm; processing of crayfish; production of
algae derivatives; professional fisherman’s permanent camp accommodation;
propagation of wildflowers; pumping station; quarantine station; quay; radio
mast; radio station; radio translator site; radio transmitter receiving site;
recreational game fishing accommodation and facilities; residence; residence and
agriculture; residence and depot; residence and dog kennel; residence and
garden; residence and market garden; residence and storage; residence and
storage of mining equipment; residence, cropping and grazing; restoration and
occupation of historical building; retail shop for coffee and light meals;
retail shop for gifts, souvenirs and food; rifle clubhouse; rifle range; road
train parking; road transport depot; roadhouse; roadhouse, service station and
general store; roadhouse, service station and restaurant; rubbish and effluent
disposal; sandblasting; sawmill; school; service station; sewage pond, generator
shed and landscaping; sewage treatment pond; shearing team quarters; sheep dips;
ship or boat building; showroom and workshop; single person’s quarters;
slaughterhouse and holding paddock; slaughter yard; small bore pistol clubhouse;
souvenir shop; speedway clubhouse and motor racing track; sporting complex;
sportsground; stabling of horses; staff accommodation; staff quarters; stock
sale yard; stock yard; stockpiling of river sand; storage and display of
machinery; storage of cereal grain and bulk storage facility; storage of
chemical spraying equipment; storage of machinery; storage yard and depot;
store; sugar refinery; tailings dam; tannery; tavern; tea garden; telephone
exchange; television station and translator facilities; tourist accommodation
and facilities; tourist and travel shop; tourist facility associated with emus;
tourist mine; tourist railway; trades hall and offices; transport terminal; tree
farming; tropical garden; trotting course; truck depot; warehouse; water
storage; water storage and garden; water tank; weather station; weighbridge;
wharf; wool shed; workshop vehicle and machinery parking; workshop; workshop and
storage of drilling materials; zoo. |
(14) A lease of town land under section 117 of the Land Act 1933,
other than a lease that:
(a) permits the lessee to use the land or waters covered by the lease
solely or primarily for the purpose of a yacht harbour or mine buffer zone;
or
(b) both:
(i) permits the lessee to use the land or waters covered by the lease
solely or primarily for any of the following:
|
access; communications; grazing or pastoral purposes; nature trail;
pipeline; prawning; quarry; recreation; utilities; water supply; |
and
(ii) does not permit the lessee to use the land or waters solely or
primarily for agriculture, horticulture, cultivation, or a similar purpose, or
solely or primarily for any of the following:
|
accommodation; amusement park; archery range; basketball court; bowhunting;
bowling green; caravan park; car park; cropping; croquet pitch; dam; depot; golf
course; industrial purposes; jetty; land-based aquaculture; manufacturing;
motorbike track; motor racing track; racecourse; residence; rifle range; shop;
skating rink; sports centre; sports club; sports field; sports ground; storage;
swimming pool; tennis court; theatre; tree farming. |
(15) A lease of town land under section 117 of the Land Act 1933
that permits the lessee to use the land or waters covered by the lease solely or
primarily for a communications tower, mast or building.
(16) A lease under section 117A of the Land Act 1933 that permits
the lessee to use the land or waters covered by the lease solely or primarily
for the construction and maintenance of a subway or bridge.
(17) A lease under Part IV of the Land Act 1933 that permits the
lessee to use the land or waters covered by the lease solely or primarily for
residential purposes.
(1) A lease under the Agricultural Lands Purchase Act
1909.
(2) A miner’s homestead lease under Part VIII of the Mining Act
1904, other than a lease that:
(a) permits the lessee to use the land or waters covered by the lease
solely or primarily for grazing or pastoral purposes; and
(b) does not permit the lessee to use the land or waters solely or
primarily for agriculture, horticulture, cultivation, or a similar
purpose.
(3) A lease of a worker’s dwelling house under Part V of the
State Housing Act 1946-1974.
(4) A perpetual lease under the War Service Land Settlement Scheme Act
1954.
A lease (other than a mineral lease) under the Agreement a copy of which
is set out in the Schedule to any of the following Acts:
|
the Oil Refinery Industry (Kwinana Agreement) Act 1952; the
Broken Hill Proprietary Company’s Integrated Steel Works Agreement Act
1960; the Iron Ore (Hamersley Range) Agreement Act 1963; the Iron
Ore (Hamersley Range) Agreement Act 1963-1968; the Iron Ore (Robe River)
Agreement Act 1964; the Iron Ore (Mount Goldsworthy) Agreement Act
1964; the Iron Ore (Mount Newman) Agreement Act 1964; the Leslie
Solar Salt Industry Agreement Act 1966; the Dampier Solar Salt Industry
Agreement Act 1967; the Evaporites (Lake MacLeod) Agreement Act 1967;
the Iron Ore (Hamersley Range) Agreement Act Amendment Act 1968; the
Irrigation (Dunham River) Agreement Act 1968; the Nickel Refinery
(Western Mining Corporation Limited) Agreement Act 1968; the Alumina
Refinery (Pinjarra) Agreement Act 1969; the Nickel Refinery (Western
Mining Corporation Limited) Agreement Act Amendment Act 1970; the
Poseidon Nickel Agreement Act 1971; the Iron Ore
(Goldsworthy-Nimingarra) Agreement Act 1972; the Iron Ore
(McCamey’s Monster) Agreement Authorization Act 1972; the Iron Ore
(Mount Bruce) Agreement Act 1972; the Alumina Refinery (Worsley)
Agreement Act 1973; the Nickel (Agnew) Agreement Act 1974; the
Mineral Sands (Eneabba) Agreement Act 1975; the Alumina Refinery
(Wagerup) Agreement and Acts Amendment Act 1978; the Collie Coal
(Griffin) Agreement Act 1979; the Collie Coal (Western Collieries)
Agreement Act 1979; the North West Gas Development (Woodside) Agreement
Act 1979; the Diamond (Argyle Diamond Mines) Agreement Act 1981; the
Shark Bay Solar Salt Industry Agreement Act 1983; the Camballin Farms
(AIL Holdings Pty Ltd) Agreement Act 1985; the Western Mining Limited
(Throssell Range) Agreement Act 1985; the Iron Ore (Channar Joint
Venture) Agreement Act 1987; the Iron Ore (Marillana Creek) Agreement Act
1991; |
that permits the lessee to use the land or waters covered by the lease
solely or primarily for any of the following:
|
accommodation for employees and visitors; aerial landing ground;
agriculture; airport; airstrip; ballast stockpile; ballast stockpile site;
berthing and loading facilities and stockpiling salt; bulk handling and shipping
terminal; bulk handling facilities; bulk loading facilities; camp comprising
residential buildings; causeway; caustic soda farm; caustic soda train loader
and pumping station; chalet; collection in catchment ditches and manufacture of
salt; commissioning and operating of pilot plant for metallurgical research
purposes; communications tower; communications tower and associated buildings;
construction and maintenance of worker accommodation; construction and operation
of branch lines and marshalling yard; construction and operation of railway;
construction and use of causeway; contractor’s accommodation;
contractor’s laydown area; dam site; dog pound; domestic television
transmitter site; employee housing; extension to townsite for residential
accommodation; heavy industry; heliport; housing; industrial area; industrial
purposes; industrial site and associated facilities, installations and works;
industrial stockpiling; irrigated agriculture; jetty with berthing and loading
facilities; loading and stockpiling; maintenance and construction of
workers’ accommodation; market garden; marshalling yard; materials
offloading facility; mine service area comprising contractor accommodation;
offloading construction materials; permanent construction camp accommodation for
employees; permanent mining camp accommodation; permanent railway construction
camp accommodation; permanent way store; plant nursery; plant site area; port
industrial area; power station cooling water intake system; produce loading
jetty; production plant; pumping installation and reservoir; radio repeater
station site; railway; railway and ancillary installations, works and
facilities; railway shunting; railway shunting and marshalling; railway spur
line; red mud pond; refinery, power station, water storage and buffer zone;
residential purposes; sewage disposal site; sewage treatment plant and radio and
television transmitter tower; ship loading; shunting lines; stockpile area;
stockpile site; stockpile site and shiploading facilities; stockpiling site for
railway ballast; storage and maintenance of quarry equipment; storage of railway
equipment; supply base; supply base and laydown area; tailing area; transmission
mast; treatment plant; treatment plant and administration building; waste
disposal site; waste material dump; water tank; wharf; workers’
construction camp accommodation; workforce housing and welfare services; yard or
site for ship-building, boat-building, storing of timber, coal, merchandise,
goods or other property, or for the erection of a workshop or foundry. |
(1) A perpetual lease, or a lease for a term of years, of a working
man’s block, or a homestead block, (other than a lease of land or waters
forming the whole or part of an Aboriginal reserve) under Part XI of the
Crown Lands Consolidation Act 1886, Part VII of the Crown Lands Act
1888, Part IX of the Crown Lands Act 1903, Part IX of the Crown
Lands Act 1915 or Part IX of the Crown Lands Act 1929.
(2) A perpetual lease under the Crown Lands Act 1888, the Crown
Lands Amendment Act 1893, the Closer Settlement Act 1897, the
Crown Lands, Closer Settlement, and Blockholders’ Loans Amendment Act
1901, the Crown Lands Act 1903, the Crown Lands Act 1915, the
Returned Soldiers Settlement Act 1915, the Discharged Soldiers
Settlement Act 1917, the Agricultural Graduates Land Settlement Act
1922, the Discharged Soldiers Settlement Act 1934, Part V or section
66A or 199 of the Crown Lands Act 1929, the Marginal Lands Act
1940, the Crown Lands Development Act 1943-1973 or the Agreement a
copy of which is set out in the Schedule to the War Service Land Settlement
Agreement Act 1945, other than a lease that:
(a) permits the lessee to use the land or waters covered by the lease
solely or primarily for grazing or pastoral purposes; and
(b) does not permit the lessee to use the land or waters solely or
primarily for agriculture, horticulture, cultivation, or a similar
purpose.
(3) A perpetual lease under section 8 of the Broken Hill Proprietary
Company Limited’s Hummock Hill to Iron Knob Tramways and Jetties Act
1900 or section 5 of the Hummock Hill to Iron Knob Tramway Extension Act
1927.
(4) A perpetual lease of a block of horticultural or commonage land under
Part IV of the Village Settlements Act 1901, Part VIII of the Crown
Lands Act 1915, the Lyrup Village Association (District Extension) Act
1921 or Part VIII of the Crown Lands Act 1929.
(5) A perpetual lease, or a lease for a term of years, of a block within
an irrigation area under the Irrigation and Reclaimed Lands Act 1908, the
Irrigation and Reclaimed Lands Act 1914, the Irrigation Act 1922
or the Irrigation (Land Tenure) Act 1930.
(6) A lease for a term of years under the Returned Soldiers Settlement
Act 1915, the Discharged Soldiers Settlement Act 1917 or the
Discharged Soldiers Settlement Act 1934, other than a lease
that:
(a) permits the lessee to use the land or waters covered by the lease
solely or primarily for grazing or pastoral purposes; and
(b) does not permit the lessee to use the land or waters solely or
primarily for agriculture, horticulture, cultivation, or a similar
purpose.
(7) A perpetual lease, or a lease for a term of years, of a town allotment
within an irrigation area under the Irrigation Act 1922 or the
Irrigation (Land Tenure) Act 1930.
(1) A miscellaneous lease (other than a lease of land or waters forming
the whole or part of an Aboriginal reserve) under section 1 of the
Miscellaneous Leases Act 1872, section 92 of the Crown Lands
Consolidation Act (No. 86, 1877), section 159 of the Crown Lands
Consolidation Act 1886, section 118 of the Crown Lands Act 1888,
section 11 of the Closer Settlement Act 1897, section 11 of the Closer
Settlement Act 1902, section 80 or 126 of the Crown Lands Act 1903,
section 24 of the Irrigation and Reclaimed Lands Act 1908, section 26 of
the Irrigation and Reclaimed Lands Act 1914, section 83 or 128 of the
Crown Lands Act 1915, section 48 of the Irrigation Act 1922, section
77 or 182 of the Crown Lands Act 1929 or section 27 or 44 of the
Irrigation (Land Tenure) Act 1930 that permits the lessee to use the land
or waters covered by the lease solely or primarily for any of the
following:
|
accommodation; aerodrome; agriculture; airstrip and living quarters;
amusement centre; bakery; bathing-house; boat building or repairing; boat hire
depot; boat landing; boatshed; brick or lime kiln; bridge; building; building
for business purposes; building for the use of charitable or community service
organisations; bulk fuel agency; bulk fuel agency, transport depot and
residence; camel holding for tourists; car park; caravan and camping park;
caravan park; cereal growing; church; clubhouse; communications tower; cooling
pond and pump house; deposit of materials or produce; drive-in theatre; factory;
fellmongering establishment; firearms shooting; fishermen’s residences and
drying ground; Girl Guide accommodation cabin; Girl Guide hall; golf club;
government building; grazing and cultivation; grazing, cultivation and nursery;
hall; holiday accommodation; holiday home; horse training; horticulture; hostel;
houseboat marina; houseboat mooring and car parking; industrial purposes; inn;
irrigated forest and disposal of winery effluent and waste water; jetty;
kindergarten; land-based aquaculture and grazing; land-based aquaculture
development; land-based fish farming; land-based oyster cultivation; legal
chambers; life saving club; light industrial development; lodge; mail station;
manse; manufactory; manufacture of salt; manufacturing; marine research
facility; motel; motorcycle track; nursery; operating and maintaining a tramway;
paper-mill; parking; parking, effluent disposal, water storage and power house;
piggery; pine plantation; plant for ore reduction, manufacture of sulphuric acid
and chemical manure; pony club; poultry farming; preservation of historic
building; punt house; quay; radio tower; railway; railway station and jetty;
residence; residence and kiosk; residence and storage depot; restaurant and
kiosk; retail shop; retirement village; rifle range; road house, petrol
reselling, motel and caravan park; rubbish dump; salt evaporation pond; sawmill;
school or other educational institution; Scout accommodation cabin; Scout hall;
shack site; ship building or repairing; showground; site for the depositing of
materials or produce; site for wharf, quay, jetty; slaughterhouse;
slaughterhouse and agriculture; slaughterhouse and associated yard; smelting
works; smithy; sporting car club; sporting club; sporting ground; staff
accommodation; stock sale yard; storage; storage and loading facilities; store;
tannery; theatre; timber plantation, sawmill and timber processing; toilet
block; toll house; tourist accommodation and facilities; tourist facilities;
tourist information centre; tourist mine; tramway; transport depot; vegetable
and fodder growing and grazing; vegetable growing; vegetable growing, fodder
production and pig raising; water ski club; weather station; weighbridge; wharf;
working men’s club; working men’s homestead block; worm-growing;
wrecking yard and garage; youth cabin accommodation. |
(2) A miscellaneous lease (other than a lease of land or waters forming
the whole or part of an Aboriginal reserve) under section 92 of the Crown
Lands Consolidation Act (No. 86, 1877) that permits the lessee to use the
land or waters covered by the lease solely or primarily for the purposes
mentioned in subsection III, V, VIII or IX of that section or subsection II or
III of section 94 of that Act.
(3) A miscellaneous lease (other than a lease of land or waters forming
the whole or part of an Aboriginal reserve) under section 159 of the Crown
Lands Consolidation Act 1886 that permits the lessee to use the land or
waters covered by the lease solely or primarily for the purposes mentioned in
subsection III, V, VIII or IX of that section or subsection II or III of section
162 of that Act.
(4) A miscellaneous lease (other than a lease of land or waters forming
the whole or part of an Aboriginal reserve) under section 118 of the Crown
Lands Act 1888 that permits the lessee to use the land or waters covered by
the lease solely or primarily for the purposes mentioned in subsection III, V,
VIII or IX of that section or subsection I or II of section 123 of that
Act.
(5) A miscellaneous lease (other than a lease of land or waters forming
the whole or part of an Aboriginal reserve) under section 80 of the Crown
Lands Act 1903 that permits the lessee to use the land or waters covered by
the lease solely or primarily for the purposes mentioned in subsection III, V or
VII of that section or paragraph II(a) or (b) of section 203 of that
Act.
(6) A miscellaneous lease (other than a lease of land or waters forming
the whole or part of an Aboriginal reserve) under section 83 of the Crown
Lands Act 1915 that permits the lessee to use the land or waters covered by
the lease solely or primarily for the purposes mentioned in subsection III, V or
VII of that section or paragraph II(a) or (b) of section 245 of that
Act.
(7) A miscellaneous lease (other than a lease of land or waters forming
the whole or part of an Aboriginal reserve) under section 77 of the Crown
Lands Act 1929 that permits the lessee to use the land or waters covered by
the lease solely or primarily for the purposes mentioned in paragraph (1)III,
IV, V or VII of that section or paragraph II(a) or (b) of section 244 of that
Act.
(8) A miscellaneous lease under section 78B of the Crown Lands Act
1929 that permits the lessee to develop or use the land or waters covered by
the lease solely or primarily for the purpose of holiday accommodation or a
shack site.
(1) A lease with a right of purchase under the Scrub Lands Act
1866, the Scrub Lands Act Amendment Act 1867, the Scrub Lands Act
Extension Act 1870-71, section 58 of the Crown Lands Consolidation
Act (No. 86, 1877), section 20 of the Crown Lands Amendment Act 1882,
Part II of the Agricultural Crown Lands Amendment Act 1884, Part II of
the Crown Lands Consolidation Act 1886, Part III of the Crown Lands
Amendment Act 1887 or Part II of the Crown Lands Act 1888.
(2) A credit agreement, or an agreement of sale and purchase on credit,
under the Waste Lands Amendment Act 1868-9, the Waste Lands Alienation
Act 1872, the Crown Lands Consolidation Act (No. 86, 1877), the
Crown Lands Amendment Act 1880, the Crown Lands Amendment Act
1881, the Crown Lands Amendment Act 1882, the Agricultural Crown
Lands Amendment Act 1884 or the Crown Lands Consolidation Act
1886.
(3) A lease with a right of purchase under section 39 of the Waste
Lands Alienation Act 1872 or Part III (other than section 58) of the
Crown Lands Consolidation Act (No. 86, 1877) that permits the lessee to
use the land or waters covered by the lease solely or primarily for the purposes
of agriculture or cultivation.
(4) A selector’s lease under Part III of the Agricultural Crown
Lands Amendment Act 1884 or Part III of the Crown Lands Consolidation Act
1886.
(5) A lease (other than a lease of land or waters forming the whole or
part of an Aboriginal reserve) under section 29 of the Crown Lands Amendment
Act 1885.
(6) A grazing and cultivation lease, or a lease of grazing and cultivation
lands, under Part II of the Crown Lands Consolidation Act 1886 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for the purposes of agriculture or cultivation.
(7) A lease with a right of purchase under the Crown Lands Act 1888
or the Crown Lands Amendment Act 1893, other than a lease that:
(a) permits the lessee to use the land or waters covered by the lease
solely or primarily for grazing or pastoral purposes; and
(b) does not permit the lessee to use the land or waters solely or
primarily for agriculture, horticulture, cultivation, or a similar
purpose.
(8) A villager’s lease under section 80 of the Crown Lands
Amendment Act 1893.
(9) An agreement under Part IX of the Crown Lands Act
1903.
(10) A lease under clause 11 of the Indenture a copy of which is set out
in the Schedule to the Broken Hill Proprietary Company’s Indenture Act
1937 that permits the lessee to use the land or waters covered by the lease
solely or primarily for the purpose of constructing or extending a
tramway.
(11) A lease under section 35 of the National Parks and Wildlife Act
1972 that permits the lessee to develop or use the land or waters covered by
the lease solely or primarily for any of the following:
|
airstrip; archery clubhouse and archery range; cabin accommodation; canoe
clubhouse; caravan park; cottage accommodation for residents, visitors or
guests; employee accommodation in huts or other buildings; field station cabin
accommodation; fish factory; garden; golf course; golf driving range; grazing
and cropping; gymnasium; holiday house; horse and pony riding club; indoor
health centre; jetty; kiosk and restaurant; lighthouse; model aircraft flying
clubhouse; occupation and maintenance of historic or heritage building; optical
fibre repeater building and solar panel; pistol club and shooting range; radio
tower; radio/telephone tower and building; research centre; research station;
residential accommodation; Scout or Guide hall; shack accommodation; storage of
mining equipment; storage, take-off and landing of aircraft; tennis court;
tourist accommodation; tourist accommodation, camping facilities, food and fuel
outlet and licensed premises; youth hostel. |
(1) A lease under section 81 or 82 of the Crown Lands Act
1890.
(2) A lease under section 24 of the Crown Lands Act 1890,
section 24 of the Crown Lands Act 1903 or section 11 of the Crown
Lands Act 1911 that permits the lessee to use the land or waters
covered by the lease solely or primarily for any of the following:
|
children’s playground; cycling track; dam or weir; fire station; golf
club; hospital; monument; public hall; public pound; showground; sports ground;
town hall; war memorial; wharf. |
(3) A lease under subsection 128(1) or section 129 of the Crown Lands
Act 1903.
(4) A lease under subsection 128(2) of the Crown Lands Act 1903,
subsection 108(2) of the Crown Lands Act 1911 or subsection 77(4)
of the Crown Lands Act 1935 that permits the lessee to use the
land or waters covered by the lease solely or primarily for any of the
following:
|
bowling green; cool store; council works depot; erecting or working any
manufactory, mill or other such work; fish hatchery; fuel depot; golf club;
grain elevator; Hydro-Electric Commission substation; hotel; jetty; land-based
aquaculture; marina; petrol depot; port facilities; refuse area; rowing club
clubhouse; Scout accommodation; senior citizens’ club; sewerage plant;
ship building; showground; slipway; tennis court; water pumping station; wharf;
yacht club. |
(5) A lease under subsection 108(1) or section 109 of the Crown Lands
Act 1911.
(6) A building lease under the Crown Lands Act 1935.
(7) A lease under subsection 7(2) of the Crown Lands Act 1935 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for any of the following:
|
aged persons’ home; ambulance centre; aqueduct; bridge; club;
communications tower, mast or building; community care institution; construction
of a drain; construction of a water course; construction of an irrigation canal;
crematorium; dam; fire station; hall; hospital; landing-place; library; literary
or scientific institution; museum; quay; reservoir; sports club; sports
facilities; sports ground; theatre; trigonometrical station; wharf. |
(8) A lease under section 23 of the Crown Lands Act 1935 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for any of the following:
|
air force base; army base; army depot; bombing range; naval base; rifle
range. |
(9) A lease under subsection 77(1) or section 78 of the Crown Lands Act
1935.
(10) A lease under section 29 of the Crown Lands Act 1976 that
permits the lessee to use the land or waters covered by the lease solely or
primarily for the any of the following:
|
agriculture; dairying; erection of residential building; growing of trees
for commercial or industrial purposes; horticulture; industrial purposes;
piggery; poultry farm; viticulture. |
A lease under Part V of the Closer Settlement Act 1929, other
than:
(a) a lease under section 41 or 42 of that Act; or
(b) a lease that:
(i) permits the lessee to use the land or waters covered by the lease
solely or primarily for grazing or pastoral purposes; and
(ii) does not permit the lessee to use the land or waters solely or
primarily for agriculture, horticulture, cultivation, or a similar
purpose.
(1) A lease of town land under Division 4 of Part III of the Crown
Lands Ordinance 1912 (No. 3 of 1912) of the Commonwealth, Division 4 of Part
III of the Crown Lands Ordinance 1912 (No. 8 of 1912) of the
Commonwealth, Division 4 of Part III of the Crown Lands Ordinance 1924 of
the Commonwealth, Division 4 of Part III of the Crown Lands Ordinance
1927 (Territory of North Australia) of the Commonwealth, Division 4 of Part
III of the Crown Lands Ordinance 1927 (Territory of Central Australia) of
the Commonwealth or section 25CF, 74A or 74D or Division 4 of Part III of the
Crown Lands Act 1931-1991 of the Northern Territory, other than a lease
that:
(a) permits the lessee to use the land or waters covered by the lease
solely or primarily for a harbour; or
(b) both:
(i) permits the lessee to use the land or waters covered by the lease
solely or primarily for grazing or pastoral purposes; and
(ii) does not permit the lessee to use the land or waters solely or
primarily for agriculture, horticulture, cultivation, or a similar
purpose.
(2) A town land subdivision lease under Division 6 of Part III of the
Crown Lands Act 1931-1991 of the Northern Territory.
(1) A lease of agricultural land, or an agricultural lease, under Division
3 of Part III of the Crown Lands Ordinance 1912 (No. 3 of 1912) of the
Commonwealth, Division 3 of Part III of the Crown Lands Ordinance 1912
(No. 8 of 1912) of the Commonwealth, Division 3 of Part III of the Crown
Lands Ordinance 1924 of the Commonwealth, Division 3 of Part III of the
Crown Lands Ordinance 1927 (Territory of North Australia) of the
Commonwealth, Division 3 of Part III of the Crown Lands Ordinance 1927
(Territory of Central Australia) of the Commonwealth, section 25CG, 25DAA, 74A
or 74D or Division 3 of Part III of the Crown Lands Act 1931-1991 of the
Northern Territory or section 14 of the Agricultural Development Leases
Ordinance 1956 of the Commonwealth, or under the Agreement a copy of which
is set out in the Schedule to the Rice Development Agreement Ordinance
1956 of the Commonwealth, other than:
(a) an agricultural (mixed farming and grazing) lease; or
(b) a lease that:
(i) permits the lessee to use the land or waters covered by the lease
solely or primarily for grazing or pastoral purposes; and
(ii) does not permit the lessee to use the land or waters solely or
primarily for agriculture, horticulture, cultivation, or a similar
purpose.
(2) An agricultural lease of an experimental farm under section 16A of the
Crown Lands Act 1931-1991 of the Northern Territory, other than a lease
that:
(a) permits the lessee to use the land or waters covered by the lease
solely or primarily for grazing or pastoral purposes; and
(b) does not permit the lessee to use the land or waters solely or
primarily for agriculture, horticulture, cultivation, or a similar
purpose.
(3) An agricultural development lease under the Agricultural
Development Leases Ordinance 1956 of the Commonwealth or under the Agreement
a copy of which is set out in the Schedule to the Rice Development Agreement
Ordinance 1956 of the Commonwealth, other than:
(a) an agricultural (mixed farming and grazing) lease; or
(b) a lease that:
(i) permits the lessee to use the land or waters covered by the lease
solely or primarily for grazing or pastoral purposes; and
(ii) does not permit the lessee to use the land or waters solely or
primarily for agriculture, horticulture, cultivation, or a similar
purpose.
(1) A lease for special purposes, or a special purposes lease, under
section 83 of the Northern Territory Land Act 1872 of South Australia,
section 79 of the Northern Territory Crown Lands Consolidation Act 1882
of South Australia, section 77 or 78 of the Northern Territory Crown Lands
Act 1890 of South Australia or section 4 of the Special Purposes Leases
Act of the Northern Territory that permits the lessee to use the land or
waters covered by the lease solely or primarily for any of the
following:
|
abattoir; Aboriginal hostel; accommodation; aerodrome; aged home; aged
persons’ flats; agricultural farm and garden; agriculture and mixed
farming; airstrip; ambulance headquarters; ambulance station; amphitheatre;
animal husbandry centre; animal shelter; archery club; archery range; art
gallery; aviary; bakery; banana plantation; barge landing; barge terminal;
basketball club; basketball court; bathing house; benevolent social work centre;
blood centre and meeting rooms; blood transfusion centre; board headquarters;
boatyard; botanic gardens; bowhunting club; bowhunting range; bowling club;
bowling green; brick factory; brick yard; building or repairing boats; bulk
cargo wharf; butcher; cafe; cannery; canteen; car parking; caravan park; caravan
park and camping ground; cargo handling; cargo storage; carparking; cattle
holding yard; centre for the spiritual and social welfare of children; child
care; child minding centre; children’s home; children’s hostel;
church; church hall; church manse; church rectory; cinema; civic centre; clinic;
club building; club house; club room; college; community creche; community hall;
community storage; community welfare centre; company headquarters; convent;
convention centre; cooperative society; court house; craft complex; creche;
crematorium; cricket club; cricket ground; croquet club; croquet pitch; dairy;
depositing materials or produce; disposal of red mud; drive-in theatre; dry
cleaners; educational institution; elderly persons’ home; engineering
workshop; equestrian club; equestrian field; erection of a wharf, berth,
storehouse or slip for building or repairing ships and other vessels; explosive
storage; factory; feed lot yard; ferry terminal; fish processing; food
processing; football club; football ground; funeral home; game fishing club;
game safari base; garage; gas storage facility; general store; Girl Guide
accommodation cabin; Girl Guide hall; gliding club; golf club; golf course;
greyhound racing; greyhound track; guest house; Guide hall; gun club; hall;
headquarters of Australian Red Cross; hockey club; hockey pitch; holiday
accommodation and facilities; holiday cabin; horse and pony club; horse stable;
horse yard; horticulture; hostel; hotel; hotel/motel; housing units; industrial
area; industrial purposes; inflammable materials storage; inn; institute of
linguistics; jetty; kennel; kiln; landscaping supply depot; leadership centre;
library; light industry; lime works; lodge hall; lodge room; lodge temple; mail
station; manufacture of stockfood; marina; marina workshop; Masonic hall; meat
packaging; meatwork effluent disposal; meatworks; meeting room; motel; motocross
circuit; motorcycle racing; motor racing circuit; motor sports; municipal depot;
museum; museum and art gallery; netball club; netball court; nursery; office;
office of the Northern Territory Electricity Commission; on-shore tour boat
base; on-shore trawler base; ore stockpile; orphanage; patrol headquarters;
pearl culture land base; pearling depot; permanent construction camp
accommodation; petrol depot; petrol station; pistol club; pistol range; police
station; police youth club; polocrosse club; polocrosse field; pony club; pony
field; post office; poultry farm; pound; power station; pre-school; preservation
and protection of artillery museum; preservation and restoration of well site;
private sport site; private sports club; public swimming pool; punt house; quay;
racecourse; racing club; radio communications building; radio communications
tower; radio receiver station; radio transmitter; rail line; railway spurline;
religious centre; research centre; research institute; residence; residential
purposes; rest rooms; restaurant; retail store; rice growing; rifle club; rifle
range; road house; road transport depot; rural residence; Salvation Army centre;
sawmill; sawmilling depot; school; scientific research centre; Scout hall;
seafarers’ centre; seed processing plant; service station; sewage
treatment; sheltered workshop; ship’s chandlery; ship maintenance
facility; shooting range; shore base for oyster cultivation; show ground;
showroom; slaughter yard; slipway; speedway; sporting arena; sporting oval;
sports club; sports complex; sports field, pitch, stadium or oval; sports
ground; sports training ground; stockpiling and loading ore; storage; storage
depot; storage of boats; store; studio; surgery; swimming club; swimming pool;
television studio; tennis club; tennis court; theatre; toll house; tour base;
tourist accommodation; tourist lodge; tourist theme park or facility; training
centre; transport depot; warehouse; water treatment plant; watersports; wayside
cafe; wayside inn; welfare centre; wharf; wholesale outlet; windmill; windmill
servicing depot; wireless aerial site; workshop; youth services centre;
zoo. |
(2) A special purposes lease under section 6 of the Mining (Gove
Peninsula Nabalco Agreement) Act of the Northern Territory or subclause 4(2)
of the Agreement a copy of which is set out in the Schedule to that Act that
permits the lessee to use the land or waters covered by the leases solely or
primarily for any of the following:
|
bulk cargo wharf; disposing of red mud and other effluents; general cargo
wharf; industrial purposes; intake and discharge canal associated with plant
cooling system; permanent construction camp accommodation; plant cooling system;
sewage treatment plant; water reticulation plant. |
(1) A miscellaneous lease under Division 5 of Part III of the Crown
Lands Ordinance 1912 (No. 3 of 1912) of the Commonwealth, Division 5 of Part
III of the Crown Lands Ordinance 1912 (No. 8 of 1912) of the
Commonwealth, Division 5 of Part III of the Crown Lands Ordinance 1924 of
the Commonwealth, Division 5 of Part III of the Crown Lands Ordinance 1927
(Territory of North Australia) of the Commonwealth, Division 5 of Part III
of the Crown Lands Ordinance 1927 (Territory of Central Australia) of the
Commonwealth or section 25DAA, 74D or 74E or Division 5 of Part III of the
Crown Lands Act 1931-1991 of the Northern Territory that permits the
lessee to use the land or waters covered by the lease solely or primarily for
any of the following:
|
abattoir; Aboriginal hostel; accommodation; agricultural and mixed farming;
agricultural farm and garden; agriculture; airstrip; amphitheatre; amusement
hall; animal husbandry centre; archery club; archery range; art gallery; aviary;
bakery; banana plantation; basketball club; basketball court; board and lodging
house; board headquarters; boatbuilding; boatyard; bowhunting club; bowhunting
range; bowling club; bowling green; brewery; brick factory; brick yard;
brickmaking; Buffalo temple site; building or repairing boats; butchering; cafe;
cannery; cargo storage; cinema; club; club house; club room; convalescent home;
convent; convention centre; cotton farming; court house; crematorium; cricket
club; cricket ground; croquet club; croquet pitch; cultivation; curing and
storage of buffalo hides; dairy; depot; drive-in theatre; dry cleaners; dwelling
house; engineering workshop; equestrian club; equestrian field; factory; feed
lot yard; ferry terminal; fishing depot; flower seed plantation; football club;
football ground; fruit growing; funeral home; game fishing club; game safari
base; garage; garden; gas storage facility; general store; golf club; golf
course; goods shed; guest house; hangar; hay production; hay shed; hockey club;
hockey pitch; holding ground for cattle slaughtering; holiday accommodation and
facilities; homestead; horse stable; horse yard; hostel; hotel; hotel store;
industrial purposes; irrigation farming; kennel; kiln; kindergarten; landscaping
supply depot; laundry; library; lodge room; market garden; motocross circuit;
motor racing circuit; netball club; netball court; office; old men’s home;
on-shore tour boat base; orchard; orchid garden; pasture seed plantation;
permanent construction camp accommodation petrol depot; pig yard; piggery;
pistol club; pistol range; plant nursery; plantation; polocrosse club;
polocrosse field; pony club; pony field; poultry farm; pound; power station;
racecourse; radio communications building; radio communications tower; radio
transmission tower; rail line; recreation centre for women; religious centre;
repair shop; research centre; residence; rice growing; rifle club; rifle range;
rural residence; sawmilling; seafarers’ centre; service station;
ship’s chandlery; ship maintenance facility; shop; showroom; slaughter
yard; slipway; sports club; sports complex; sports field, pitch, stadium or
oval; sports ground; stockyard; storage of boats; store; studio; surgery;
swimming club; swimming pool; tank sinking plant; tannery; tennis club; tennis
court; theatre; tour base; tourist camel farm; tourist theme park or facility;
transport depot; tree farming; tropical agriculture; vineyard; viticulture;
warehouse; water treatment plant; welfare centre; wholesale outlet; wireless
station; wood yard; wool scouring; workshop. |
(2) A miscellaneous lease of garden land under section 73A of the Crown
Lands Ordinance 1924 of the Commonwealth, section 69 of the Crown Lands
Ordinance 1927 (Territory of North Australia) of the Commonwealth, section
69 of the Crown Lands Ordinance 1927 (Territory of Central Australia) of
the Commonwealth or section 70 of the Crown Lands Act 1931-1991 of the
Northern Territory.
(1) A lease under section 30 or 81 of the Northern Territory Land Act
1872 of South Australia.
(2) A lease under section 30 or 77 of the Northern Territory Crown
Lands Consolidation Act 1882 of South Australia.
(3) A lease under Part II of the Northern Territory Crown Lands Act
1890 of South Australia.
(4) A lease under section 54 of the Northern Territory Crown Lands Act
1890 of South Australia.
(5) A lease under section 78 of the Northern Territory Crown Lands Act
1890 of South Australia that permits the lessee to use the land or waters
covered by the lease solely or primarily for the purposes mentioned in
subsection III, V, VIII, IX or X of that section or subsection II or III of
section 81 of that Act.
(6) A lease under section 6A of the Crown Lands Act 1931-1991 of
the Northern Territory.
(7) A lease under paragraph 23(b) or 23(c) of the Crown Lands Act
1931-1991 of the Northern Territory, or a Crown lease under paragraph 26(a)
or (b) of the Crown Lands Act of the Northern Territory, that permits the
lessee to use the land or waters covered by the lease solely or primarily for
any of the following purposes:
|
aerial sports academy; agricultural and mixed farming; agricultural
development and marketing; agricultural farm and garden; agriculture; aircraft
landing strip; airstrip; ambulance headquarters; amphitheatre; animal husbandry
centre; aquatic entertainment centre; archery club; archery complex; archery
range; art gallery; ash disposal pond; aviary; aviation; aviation historical
society; banana plantation; basketball club; basketball court; beacon site;
bitumen plant; boat landing facility; boatyard; bombing range; bowhunting club;
bowhunting range; bowling club; bowling green; brick factory; brick yard;
building or repairing boats; bus depot; bus terminal; cannery; car park; car
repair shop; car sales yard; car storage and parking; caravan park; cargo
storage; cashew production; cement plant; cereal crops; child care centre;
children’s playground; church; church hall; cinema; club; club hall; club
room; clubhouse; coach terminal; college; commercial building development;
commercial cropping; commercial property subdivision; community centre;
community hall; community storage; compressor station; convention centre;
council complex; council depot; council office; council works yard; court house;
creche; crematorium; cricket club; cricket ground; crocodile research facility;
cropping; crops; croquet club; croquet pitch; crushing plant; cultivation;
cultural centre; Country Women’s Association rest rooms; dairy; dam; day
care centre; depot; development of tourist accommodation and facilities;
disposal of dangerous goods; dog breeding; dressage-safe riding area; drive-in
theatre; dry cleaners; dump; effluent disposal; equestrian centre; equestrian
club; equestrian field; factory; feed hay agriculture; feed lot yard; fire
station; fodder mill; football club; football ground; freight storage; fuel
depot; funeral home; funeral parlour; game fishing club; game safari base; gaol;
garbage dump; gas storage facility; Girl Guides cabin accommodation; Girl Guides
hall; golf club; golf course; guest house; Guide hall; hall; hay production;
hazardous industrial development; headquarters; health centre; health clinic;
helicopter base; herb farm; Hindu temple; historic railway; hockey club; hockey
pitch; holiday accommodation and facilities; homestead; horse and pony club;
horse stable; horse yard; horticulture; hospital; hostel; hotel; indoor
recreation; industrial development; industrial development on waterfront;
industrial purposes; industrial subdivision; inn; Islamic centre; kennel; kiln;
laboratory; land-based aquaculture; land-based commercial prawn farm; land-based
fish culture; landscaping supply depot; library; lodge room; mango farm;
manufacturing; marina; market gardening; medical centre; meeting room; motel;
motor racing circuit; motor sports; motorcross circuit or track; municipal
depot; museum; netball club; netball court; nursery; nursing home; office;
on-shore fishing base; on-shore houseboat base; on-shore tour boat base; optical
fibre regenerator site; orchard; orchid nursery; oval; permanent construction
camp accommodation; pharmacy; picture theatre; pistol club; pistol range;
polocrosse club; polocrosse field; pony club; pony field; port-related industry;
post office; pound; private sports club; protection of heritage building; public
car park; racecourse; racing club; radio broadcast aerial station; radio
repeater; radio tower; radio transmission tower; railway; rail line; Red Cross
centre; refuse tip; research centre; residential development; residential
purposes; residential subdivision; resource centre; restaurant; restoration of
police station; retail shop; retirement village; rice growing; rifle club; rifle
range; roadhouse; rural residence; sailing club; satellite receiving station;
school; scientific research centre; Scout hall; seafarers’ centre; seed
production; senior citizens’ centre; service station; sheltered workshop;
ship’s chandlery; ship maintenance facility; shop; shopping complex;
showground; showroom; silviculture; slipway; social club; solid waste disposal
facility; sports club; sports complex; sports field, pitch, stadium or oval;
sports ground; sports training ground; stable; stock fodder production;
stockyard; storage; storage of boats; studio; supermarket; surf life saving
club; surgery; swimming club; swimming pool; table grape growing; tavern;
temple; tennis club; tennis court; theatre; timber mill; tour base; tourist
camel farm; tourist facilities; tourist information centre; tourist lodge;
tourist theme park or facility; tower construction; transport depot; transport
terminal; trucking yard; units for aged persons; university; vegetable
production; vehicle sales yard; vehicle storage; warehouse; water retention
basin; water treatment plant; wayside inn; weather station; wharf; wholesale
outlet; women’s refuge; workshop; yacht association; yacht club; youth
centre; youth club; zoo. |
(8) A lease under section 68A, 68B, 68C, 68D, 68E, 68F, 68G or 68H of the
Crown Lands Act 1931-1991 of the Northern Territory.
(9) A lease under section 112A of the Crown Lands Act 1931-1991 of
the Northern Territory.
(10) A lease under section 2 of the Darwin Leases (Special Purposes)
Ordinance 1946 of the Commonwealth or section 3 of the Darwin Short Term
Leases Ordinance 1946 of the Commonwealth.
(11) A lease under section 3 of the Church Lands Leases Ordinance
1947 of the Commonwealth.
(12) A lease under section 4 or 29A of the Darwin Town Area Leases Act
1947-1979 of the Northern Territory.
(13) A lease under section 16A, 16AA, 16B, 16C or 16D of the Darwin
Town Area Leases Act 1947-1979 of the Northern Territory.
(14) A lease under section 5 of the Crown Lands Act of the Northern
Territory.
Part
1—Contents of this
Schedule
1 Contents
(1) This Schedule contains application and transitional provisions in
relation to amendments made by this Act about:
(a) future acts (see Part 2); and
(b) native title determination applications etc. (see Parts 3 and 4);
and
(d) various other matters (see Part 5).
(2) This Schedule also:
(a) deals with the effect of the failure to table a particular
determination made under the old Act (see Part 6); and
(aa) ensures that there will be compensation for the effect of this Act
(see Part 6A); and
(b) provides for the making of regulations for the purposes of this Act
(see Part 7); and
(c) defines terms used in this Schedule (see Part 8).
Part
2—Application of future act
amendments
2 Application
Subject to this Schedule:
(a) the repeal of Division 3 of Part 2 of the old Act; and
(b) the insertion of Subdivisions A to P of Division 3 of Part 2 of the
new Act; and
(c) any related amendments of the new Act;
by this Act apply to future acts taking place after the commencement of
this Act.
3 Transitional—certain modified
Subdivisions of Division 3 of Part 2 to have effect in period from 23.12.96
until commencement
The old Act applies to future acts taking place after 23 December 1996 but
before the commencement of this Act as if:
(a) Subdivisions G to K of Division 3 of Part 2 of the new Act
(disregarding paragraph 24GE(1)(f)), and any related provisions of the new Act,
were included in the old Act; and
(b) acts to which those Subdivisions apply were permissible future
acts.
4 Transitional—old Act section 29 notices
etc.
Old Act section 29 notices—section 28
satisfied or arbitral body application
(1) If, before the commencement of the new “right to negotiate”
provisions:
(a) a notice was given in relation to a future act under section 29 of the
old Act; and
(b) apart from this subitem, the new “right to negotiate”
provisions would apply in relation to the future act after the commencement of
this Act; and
(c) either:
(i) the requirements of any of paragraphs 28(1)(a) to (f) of the old Act
were satisfied; or
(ii) an application was made under section 35 of the old Act to an
arbitral body and had not been withdrawn;
then, after the commencement of this Act, the old “right to
negotiate” provisions continue to apply, despite the amendments made by
this Act, in relation to the future act.
Old Act section 29 notices—old Act native
title parties
(2) If:
(a) a notice under section 29 of the old Act was given in relation to a
future act at least 2 months before the commencement of the new “right to
negotiate” provisions; and
(b) apart from this subitem, the new “right to negotiate”
provisions would apply in relation to the future act after the commencement of
this Act; and
(c) subitem (1) does not apply to the future act;
then, after the commencement of this Act, the new “right to
negotiate” provisions apply in relation to the future act as if:
(d) the only persons who were native title parties were those who were
native title parties under the old Act; and
(e) the requirements of section 29 of the new Act had been complied
with.
Old Act section 29 notices—expedited
procedure
(3) If:
(a) before the commencement of the new “right to negotiate”
provisions:
(i) a notice under section 29 of the old Act was given in relation to a
future act; and
(ii) the notice included a statement that the Government party considered
the act to be an act attracting the expedited procedure; and
(iii) an objection was lodged under subsection 32(3) of the old Act
against the inclusion of the statement; and
(b) by the time the new “right to negotiate” provisions
commenced, no determination had been made under section 32(4) of the old Act in
relation to the objection; and
(c) apart from this subitem, the new “right to negotiate”
provisions would apply in relation to the future act after the commencement of
this Act;
then, after the commencement of this Act:
(d) the old “right to negotiate” provisions continue to apply,
despite the amendments made by this Act, for the purpose of making the
determination; and
(e) if the determination is that the act is not an act attracting the
expedited procedure, the new “right to negotiate” provisions apply
in relation to the future act as if:
(i) the only persons who were native title parties were those who were
native title parties under the old Act; and
(ii) the requirements of section 29 of the new Act had been complied
with.
Saving of old Act agreements and arbitral
determinations
(4) The amendments made by this Act do not affect any conditions
in:
(a) an agreement of the kind mentioned in paragraph 31(1)(b) of the old
Act; or
(b) a determination under section 38 of the old Act; or
(c) a declaration under section 42 of the old Act;
that was made before the commencement of this Act.
Part
3—Application of amendments
relating to section 61 applications: proceedings relating to
determinations
5 Table of situations and
consequences
The table in item 6 sets out various situations that may exist in relation
to an application that was given to the Native Title Registrar as mentioned in
section 61 of the old Act, and certain consequences of the commencement of this
Act.
6 Table
|
|
Situation at the commencement of this
Act |
|
|---|---|---|
|
1 |
Application: |
Application is taken to have been made to Federal
Court. |
|
2 |
Registrar has given, or is giving, notification but section
66 period not completed. |
Application is taken to have been made to Federal Court. Any
notification is taken to be for that application and the same people are the
parties. |
|
3 |
Notification given by Registrar, section 66 period for the
application is completed and application is not finalised. |
Application is taken to have been made to Federal Court. Any
notification is taken to be for that application and the same people are the
parties. |
|
4 |
NNTT has made, or has purported to make, a determination
under the old Act that there is no native title in relation to an
area. |
Native Title Registrar must remove any relevant entry from
National Native Title Register. |
7 Case 3 in item 6—previously directed
mediation conference
If:
(a) an application that was made to the Native Title Registrar under
section 61 of the old Act is taken to have been made to the Federal Court;
and
(b) at or before the commencement of this Act, the President has directed
the holding of a conference of the parties or their representatives under
subsection 72(1) of the old Act, in respect of the whole or a part of the
proceeding; and
(c) the Tribunal has not made a determination under section 73 or 160 of
the old Act; and
(d) the Native Title Registrar has not lodged the application with the
Federal Court under section 74 of the old Act;
then, for the purposes of the new Act, the Federal Court is taken to have
referred the proceeding, or the part of the proceeding, to mediation under
section 86B of the new Act. The Court is taken to have made the referral at the
commencement of this Act.
8 Case 3 in item 6—application already
with Federal Court
If:
(a) an application that was made to the Native Title Registrar under
section 61 of the old Act is taken to have been made to the Federal Court;
and
(b) the Native Title Registrar has lodged the application with the Federal
Court under section 74 of the old Act;
the Federal Court is taken to have made an order, under subsection 86C(1)
of the new Act, that mediation cease in relation to the whole of the
proceeding.
9 Case 3 in item 6—effect of section 24FA
protection
If case 3 in the table in item 6 applies to a non-claimant application
covering an area, the area:
(a) is taken to be subject to section 24FA protection (within the meaning
of the new Act) unless and until:
(i) the area is covered by an entry in the National Native Title Register
specifying that native title exists in relation to the area; or
(ii) the non-claimant application is withdrawn or dismissed; and
(b) is taken to have been subject to section 24FA protection (within the
meaning of the new Act) at all times since the end of the period of 2 months
worked out under section 66 of the old Act.
10 Case 4 in item 6—effect of section 24FA
protection
If case 4 in the table in item 6 applies to an area, any part of the
area:
(a) is taken to be subject to section 24FA protection (within the meaning
of the new Act) unless and until that part of the area is covered by an entry in
the National Native Title Register specifying that native title exists in
relation to that part of the area; and
(b) is taken to have been subject to section 24FA protection (within the
meaning of the new Act) at all times since the end of the period of 2 months
worked out under section 66 of the old Act.
Part
4—Application of amendments
relating to section 61 applications: registration of claims
11 Registration of claims
Pre-commencement registered claims
covered
(1) This item sets out the consequences of the commencement of this Act in
relation to a claim made in an application that was given to the Native Title
Registrar as mentioned in section 61 of the old Act if, when this Act commenced,
an entry recording details of the claim was on the Register of Native Title
Claims.
Excluded case
(2) However, the item does not apply if, before this Act commenced, an
approved determination of native title had been made in relation to the
application.
Section 190A to be applied, with expedited
consideration, to applications before 27 June 1996 where section 29
notice
(3) If:
(a) the application was made before 27 June 1996; and
(b) a notice is given under section 29 of the new Act, or a corresponding
provision of a law of a State or Territory covered by a determination under
subsection 43(1) of the new Act or old Act, in relation to an act affecting any
of the land or waters covered by the claim; and
(c) no such notice has previously been given in relation to an act
affecting any of the land or waters covered by the claim;
the Registrar must:
(d) consider the claim under section 190A of the new Act; and
(e) use his or her best endeavours to finish doing so by the end of 3
months after the notice is given.
If he or she does not do so by that time, he or she must consider the claim
under that section as soon as reasonably practicable afterwards.
Section 190A to be applied within one year to
applications before 27 June 1996 where non-exclusive agricultural or pastoral
lease
(4) If:
(a) the application was made before 27 June 1996; and
(b) at the commencement of this Act, any part of the area covered by the
claim is covered by a non-exclusive agricultural lease or a non-exclusive
pastoral lease;
the Registrar must:
(c) consider the claim under section 190A of the new Act; and
(d) use his or her best endeavours to finish doing so by the end of one
year after the commencement of this Act.
If he or she does not do so by that time, he or she must consider the claim
under that section as soon as reasonably practicable afterwards.
Section 190A to be applied to applications made
on or after 27 June 1996
(5) If the application was made on or after 27 June 1996, the Registrar
must consider the claim under section 190A of the new Act as soon as reasonably
practicable.
Expedited section 190A consideration where
section 29 notice
(6) If:
(a) either before the Registrar begins to consider the claim in accordance
with subitem (4) or (5) or while the Registrar is doing so, a notice is given
under section 29 of the new Act, or a corresponding provision of a law of a
State or Territory covered by a determination under subsection 43(1) of the new
Act, in relation to an act affecting any of the land or waters covered by the
claim; and
Note: Subitem 14(4) deems determinations under subsection
43(1) of the old Act to be made under subsection 43(1) of the new Act for
post-commencement purposes.
(b) no such notice has previously been given in relation to an act
affecting any of the land or waters covered by the claim;
the Registrar must use his or her best endeavours to finish considering the
claim under section 190A of the new Act by the end of 3 months after the notice
is given. If he or she does not do so by that time, he or she must consider the
claim under that section as soon as reasonably practicable afterwards.
Order of consideration of claims affected by same
section 29 notice
(7) If:
(a) a notice is given under section 29 of the new Act, or under a
corresponding provision of a law of a State or Territory covered by a
determination under subsection 43(1) of the new Act; and
(b) as a result of the giving of the notice, the Registrar is required by
subitem (3) or (6), or by subitems (3) and (6), to consider 2 or more claims
under section 190A of the new Act;
then the Registrar must consider the claims under that section in the order
in which their details were entered on the Register of Native Title
Claims.
Later information to be taken into
account
(8) In considering a claim in accordance with subitems (3) to (7), the
Registrar must:
(a) in addition to having regard to information in accordance with
subsection 190A(3) of the new Act, also have regard to any information provided
by the applicant after the application was made; and
(b) apply section 190A of the new Act as if the conditions in sections
190B and 190C requiring that the application:
(i) contain or be accompanied by certain information or other things;
or
(ii) be certified or have other things done in relation to it;
also allowed the information or other things to be provided, or the
certification or other things to be done, by the applicant or another person
after the application is made; and
(c) for the purposes of paragraphs (a) and (b) of this subitem, advise the
applicant that the Registrar is considering the claim, and allow the applicant a
reasonable opportunity to provide any further information or other things, or to
have any things done, in relation to the application.
Removal of claim from Register if it fails test
in section 190A of the new Act
(9) If the claim does not satisfy all of the conditions in sections 190B
and 190C of the new Act:
(a) the Registrar must remove the details of the claim from the Register
and give written notice as required by subsection 190D(1); and
(b) the other provisions of sections 190A to 190D apply as if the notice
mentioned in paragraph (a) were given under subsection 190D(1); and
(c) after the Registrar has complied with subitems (3) to (8) and this
subitem (in so far as they are applicable), he or she is taken to have complied
with section 190A.
Removal of claim from Register if it fails new
State/Territory test
(10) If:
(a) a law of a State or Territory that deals with notifying the Registrar
of claims for the purposes of paragraph 190(1)(c) of the old Act is amended so
as to impose conditions for registration of claims equivalent to those set out
in sections 190B and 190C of the new Act; and
(b) a recognised State/Territory body of the State or Territory notifies
the Registrar that a specified claim, of which details are on the Register when
the amendment commences, does not satisfy the new conditions in the law of the
State or Territory;
the Registrar must remove the details of the claim from the
Register.
Consequences of removal of claim—pre-27
June 1996 cases
(11) If:
(a) the application was made before 27 June 1996; and
(b) under subitem (9) or (10), the Registrar removes the details of the
claim from the Register;
then the new “right to negotiate” provisions (including as
modified by Part 2 of this Schedule) or the old “right to negotiate”
provisions, as the case requires, apply in relation to any act of which notice
was given under section 29 of the old Act, or a provision of a law of a State or
Territory that is equivalent to that section, as if the details of the claim had
not been removed from the Register.
Consequences of removal of claim—27 June
1996 and later cases
(12) If:
(a) the application was made on or after 27 June 1996; and
(b) under subitem (9) or (10), the Registrar removes the details of the
claim from the Register;
then the new “right to negotiate” provisions (including as
modified by Part 2 of this Schedule) or the old “right to negotiate”
provisions, as the case requires, apply in relation to:
(c) any act of which notice was given under section 29 of the old Act, or
a provision of a law of a State or Territory that is equivalent to that section;
and
(d) any act of which notice was given under section 29 of the new Act, or
a provision of a law of a State or Territory that is equivalent to that section,
before the removal of the details;
as if the details had never been entered in the Register.
Agreements and determinations are not
affected
(13) Despite subitem (12), if:
(a) an agreement of the kind mentioned in paragraph 31(1)(b) of the new
Act or of the old Act; or
(b) a determination under section 34A, 36A or 38 of the new Act or under
section 38 of the old Act; or
(c) a declaration under section 42 of the new Act or of the old
Act;
was made in relation to any of the acts mentioned in that subitem before
the removal of details relating to the claim, the agreement, determination or
declaration remains in effect after the removal of the details as if the subitem
had not been enacted.
Note: This item is subject to any regulations that may be
made under subsection 43(4) or 43A(8) of the new Act.
Part
5—Various application and
transitional provisions
12 Transitional—State and Territory
validation legislation
If a law of a State or Territory made before the commencement of this Act
contained provisions to the same effect as sections 15 and 16 of the old Act,
the provisions continue to have that effect despite the amendments made by this
Act.
13 Transitional—former section 21
agreements
The repeal of section 21 of the old Act by this Act does not apply to any
agreement covered by that section that was made before the commencement of this
Act.
14 Transitional—determinations, approvals,
regulations etc.
(1) Any determination made under paragraph 23(7)(c) of the old Act that is
in force immediately before the commencement of this Act has effect after the
commencement of this Act as if:
(a) it were a determination made under each of subsections 24MD(7) and
24NA(9) of the new Act; and
(b) it applied to the notification of registered native title claimants in
relation to land or waters in the area concerned in the same way as it applied
to notification of representative Aboriginal/Torres Strait Islander bodies for
that area.
(2) Any approval of an act under paragraph 26(2)(e) of the old Act that is
in force immediately before the commencement of this Act has effect after the
commencement of this Act as if it were an approval under subparagraph
26(1)(c)(iv) of the new Act.
(3) If a determination of an act under paragraph 26(3)(b) of the old Act
was in force immediately before the commencement of this Act, the new
“right to negotiate” provisions do not apply to the act, until such
time as the determination is revoked in writing by the Commonwealth Minister.
Such a revocation is a disallowable instrument for the purposes of section 46A
of the Acts Interpretation Act 1901.
(4) Any determination made under subsection 43(1) of the old Act that is in
force immediately before the commencement of this Act has effect after the
commencement of this Act as if it were made under subsection 43(1) of the new
Act.
(5) Any regulations made for the purposes of subsection 61(2) or 62(2) of
the old Act that are in force immediately before the commencement of this Act
have effect after the commencement of this Act as if they were made for the
purposes of subsection 61(5) of the new Act.
(6) Any regulations made for the purposes of subsection 75(2) or section 76
of the old Act that are in force immediately before the commencement of this Act
have effect after the commencement of this Act as if they were made for the
purposes of section 76 of the new Act.
(7) The repeal of subsection 183(5) of the old Act by this Act does not
apply to any delegation made under that subsection before the commencement of
this Act.
(8) Any determination made under subsection 251(1) of the old Act has
effect after the commencement of this Act as if it were made under subsection
207A(1) of the new Act.
(9) Any determination made under subsection 252(1) of the old Act for the
purposes of subsection 29(3) or paragraph 66(2)(b) of the old Act that is in
force immediately before the commencement of this Act has effect after the
commencement of this Act as if it were a determination made for the purposes of
subsection 29(3) or paragraph 66(3)(d), respectively, of the new Act.
15 Transitional—section 26D of new
Act
Section 26D of the new Act has effect, in addition to its effect apart from
this item, as if the reference in subparagraph 26D(1)(b)(ii) to “this
Subdivision” included a reference to Subdivision B of Division 3 of Part 2
of the old Act.
16 Transitional—statutory access
rights
If, at any time before the commencement of Subdivision Q of Division 3 of
Part 2 of the new Act, an entry was made on the Register of Native Title Claims,
then, for the purposes of that Subdivision, the persons who claimed to hold the
native title concerned, and any others with whom those persons claimed to hold
the native title, are taken to be persons included in the native title claim
group in relation to the claim, for so long as the entry is on the
Register.
17 Application of sections 24GC and
44H
(1) Section 24GC of the new Act applies to activities done at any time,
whether before or after the commencement of that section.
(2) Section 44H of the new Act applies to the grant, issue or creation of a
lease, licence, permit or authority at any time, whether before or after the
commencement of that section.
18 Application of compensation limitation
provision
Subsection 50(2A) of the new Act applies to entitlements to compensation
arising either before or after the commencement of that subsection.
19 Application of compensation limitation
provision
Section 51A of the new Act applies if the entitlement to the compensation
concerned arose either before or after the commencement of that
section.
20 Application of consolidation
provision
Section 67 of the new Act applies to applications made either before or
after the commencement of that section.
21 Application of native title determination
provision
Section 68 of the new Act applies:
(a) whether the first-mentioned native title determination in that section
is made before or after the commencement of that section; and
(b) whether the application that results in the second-mentioned
determination in that section is made before or after the commencement of that
section.
22 Application of strike-out
provision
Section 84C of the new Act applies where the main application mentioned in
that section was made either before or after the commencement of that section.
If the main application was made before the commencement, the reference in that
section to section 61 or section 62 is a reference to section 61 or section 62
of the old Act.
23 Application of mediation
provisions
Division 1A of Part 4, and any related provisions, of the new Act apply in
relation to applications made either before or after the commencement of that
Division or those provisions.
24 Transitional—assistance to native title
claimants
Despite subsection 183(6) of the new Act, if:
(a) before the commencement of that subsection, the Attorney-General
authorised the provision of assistance under section 183 of the old Act to a
person claiming to hold native title to an area; and
(b) after the commencement of that subsection, the person applies under
that section for the provision of further assistance in respect of the same
claim;
section 183 of the new Act has effect in relation to the application as if
subsection 183(6) were omitted.
25 Application of native title determination
provision
The repeal of section 225 of the old Act and insertion of section 225 in
the new Act by this Act apply to all determinations made after the commencement
of this Act, regardless of when any native title determination application (if
relevant) was made.
26 Transitional—definition of
registered native title claimant
For the purposes of the definition of registered native title
claimant in the new Act, if, at the commencement of this Act, an entry
relating to a claim is on the Register of Native Title Claims (other than an
entry that had been amended under subsection 190(2) of the old Act to include
details of a decision or determination), then, for so long as the entry remains
on the Register, the person whose name appears in the entry as the person who is
taken to be the claimant in relation to the claim is taken to be a person whose
name appears in the entry as the applicant in relation to the
claim.
Part
6—Validation of certain
acts
27 Validation of acts etc.
(1) In this item:
amending determination means the determination made under the
old Act on 12 December 1995 that purported to amend the original
determination.
original determination means the determination made under the
old Act on 24 December 1993 that, according to the determination, may be cited
as Native Title (Notices) Determination No. 1 of 1993.
(2) If:
(a) before or after the commencement of this item, anything was or is
done, or not done, in reliance or purported reliance on a notification or giving
of notice; and
(b) the notification or giving of notice took place in the way set out
in:
(i) the original determination; or
(ii) the original determination as amended by the amending
determination;
then the doing of the thing, or failure to do the thing, is not
ineffective, and is taken never to have been ineffective, for the purposes of
the Native Title Act 1993 merely because the original determination was
not laid before each House of the Parliament within 15 sitting days of that
House after its meeting.
Note: Section 214 of the Native Title Act 1993 made
the original determination a disallowable instrument, which meant that it was
required under the Acts Interpretation Act 1901 to be
tabled.
27A Entitlement to “just terms”
compensation
(1) If, apart from this item, the application of any of the provisions of
this Act in any particular case would result in a paragraph 51(xxxi) acquisition
of property of a person other than on paragraph 51(xxxi) just terms, the person
is entitled to such compensation, or compensation in addition to any otherwise
provided by the Native Title Act 1993, from:
(a) if the compensation is in respect of a future act attributable to a
State or a Territory—the State or Territory; or
(b) in any other case—the Commonwealth;
as is necessary to ensure that the acquisition is made on paragraph
51(xxxi) just terms.
Federal Court’s
jurisdiction
(2) The Federal Court has jurisdiction with respect to matters arising
under subitem (1) and that jurisdiction is exclusive of the jurisdiction of all
other courts except the High Court.
28 Regulations
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) In particular, regulations may be made for transitional measures in
relation to the transition from the old Act to the new Act.
29 Contents of this Part
This Part defines terms used in this Schedule.
30 Meaning of commencement of this
Act
The commencement of this Act is the time when this item
commences.
31 Meaning of new Act and old
Act
(1) The new Act is the Native Title Act 1993, as
amended at the commencement of this Act.
(2) The old Act is the Native Title Act 1993, as in
force immediately before the commencement of this Act (including as it applies
in accordance with item 3).
32 Meaning of new “right to
negotiate” provisions and old “right to negotiate”
provisions
(1) The new “right to negotiate” provisions are
the provisions in Subdivision P of Division 3 of Part 2 of the new
Act.
(2) The old “right to negotiate” provisions are
the provisions in Subdivision B of Division 3 of Part 2 of the old
Act.
33 Meaning of application is being
processed
(1) An application is being processed if:
(a) the application has been given to the Native Title Registrar under
subsection 61(1) of the old Act; and
(b) the application is still being reviewed by the Registrar (see subitem
(2)) or a presidential member (see subitem (3)).
(2) An application is being reviewed by the Registrar
if:
(a) the Registrar has not yet completed consideration of the application;
or
(b) the Registrar has completed consideration of the application
and:
(i) has formed an opinion mentioned in paragraph 63(1)(a) or (1)(b) or
subsection 64(1) of the old Act; but
(ii) has not referred the application to a presidential member under
subsection 63(2) or 64(1) of the old Act.
(3) An application is being reviewed by a presidential member
if:
(a) the Registrar has referred the application to a presidential member
under subsection 63(2) or 64(1) of the old Act; and
(b) the presidential member has not completed consideration of the
application.
34 Meaning of application is being
reviewed by a court
An application is being reviewed by a court if:
(a) the presidential member has made a direction under paragraph 63(3)(c)
or 64(2)(c) of the old Act; and
(b) either:
(i) the direction is the subject of a proceeding under the old Act before
a court; or
(ii) the period during which an application for some form of review of the
direction, or of a decision made on review of the direction, may be made has not
yet finished.
35 Meaning of application has been
accepted
An application has been accepted if it has been accepted
under section 63 or 64 of the old Act.
36 Meaning of application is taken to have
been made to Federal Court
If an application is taken to have been made to the Federal
Court:
(a) the application is to be treated as if it were made to the Federal
Court under the relevant provisions of the new Act; and
(b) the Native Title Registrar must give the application to the Federal
Court, but section 63 of the new Act does not apply in relation to the
application.
37 Meaning of Registrar is giving
notification
The Registrar is giving notification if he or
she has given notice of the application to a person whose interests may be
affected by a determination but has not given, and is not taken to have given,
notice to all such persons.
38 Meaning of Registrar has given
notification
The Registrar has given notification if he or
she has given, or is taken to have given, notice of the application to all
persons whose interests may be affected by a determination in relation to the
application, under section 66 of the old Act.
39 Meaning of section 66
period
The section 66 period, for an application, means the period
of 2 months worked out under section 66 of the old Act in relation to the
application.
40 Meaning of notification is taken to be for
that application
If, in relation to an application, notification is taken to be for
that application, the notification is to be treated as if it were notice
of the application given, or taken to have been given, under section 66 of the
new Act, that contained details of the application.
41 Meaning of
unopposed
An application is unopposed if the application is unopposed
for the purposes of section 70 of the old Act.
42 Meaning of not
finalised
An application is not finalised if:
(a) the application is the subject of a proceeding before the NNTT, the
Federal Court or the High Court; or
(b) a determination has been made in respect of the application but the
normal application and review period defined in subsection 167(10) of the old
Act has not finished.
43 Meaning of same people are the
parties
If the same people are the parties:
(a) any people who were parties to the application that was made to the
Registrar under section 61 of the old Act are taken to be the parties to the
application that is taken to have been made to the Federal Court under the
relevant provisions of the new Act; and
(b) a person who notifies the Registrar under paragraph 68(2)(b) of the
old Act, after the commencement of the new Act but within the period of 2 months
worked out under section 66 of the old Act, is also a party.
Note: Other people may also become parties (see section 84
of the new Act).