Commonwealth Numbered Acts Commonwealth Numbered ActsDivision 1--Amendments commencing on Proclamation
1 At the end of subsection 13(5)
Add:
; or (c) that the determination relates to an area in relation to which the agreement required by paragraph 47C(1)(b) has been given.
Note: Section 47C provides for extinguishment of native title rights and interests in relation to certain areas such as national parks etc. to be disregarded.
2 At the end of Division 4 of Part 2
Add:
47C National parks etc. covered by native title applications
When section applies
(1) This section applies if:
(a) a claimant application or a revised native title determination application is made in relation to an area that is, or is part of, a park area (see subsection (3)); and
(b) the operation of this section in relation to an area (the agreement area ) that is in an onshore place, and comprises the whole or a part of the park area, has been agreed to in writing by:
(i) any registered native title body corporate concerned or the applicant for any native title claim group concerned; and
(ii) whichever of the Commonwealth, the State or the Territory by or under whose law the park area was set aside, or the interest over the park area was granted or vested, as mentioned in subsection (3); and
(c) the agreement area is:
(i) Crown land; or
(ii) covered by a freehold estate held by the Crown, or a statutory authority of the Crown, in any of its capacities; and
(d) none of sections 47, 47A and 47B applies in relation to the agreement area.
(2) For the purposes of paragraph (1)(c), it is immaterial whether the land is:
(a) subject to a lease or licence; or
(b) covered by a dedication, reservation, proclamation, condition or declaration made or conferred by the Commonwealth, a State or a Territory; or
(c) covered by legislation of the Commonwealth, a State or a Territory under which the whole or a part of the land is to be used for a public purpose or public purposes; or
(d) held on trust for the benefit of another person; or
(e) subject to native title.
Meaning of park area
(3) A park area means an area (such as a national, State or Territory park):
(a) that is set aside; or
(b) over which an interest is granted or vested;
by or under a law of the Commonwealth, a State or a Territory for the purpose of, or purposes that include, preserving the natural environment of the area, whether that setting aside, granting or vesting resulted from a dedication, reservation, proclamation, condition, declaration, vesting in trustees or otherwise.
Public works
(4) An agreement referred to in paragraph (1)(b) may include a statement by the Commonwealth, or the State or Territory concerned, that it agrees that the extinguishing effect of any of its relevant public works (see subsection (11)) in the agreement area is to be disregarded.
(5) If the agreement area contains one or more relevant public works, the application mentioned in paragraph (1)(a) may also be the subject of an agreement in writing between:
(a) any registered native title body corporate concerned or the applicant for any native title claim group concerned; and
(b) the Commonwealth, the State or the Territory to which the relevant public work relates (see subsection (11));
that any extinguishment of native title by the construction or establishment of the relevant public work is to be disregarded.
Notice and time for comment
(6) Before making an agreement for the purposes of paragraph (1)(b) or subsection (5), the Commonwealth, or the State or Territory concerned, must:
(a) arrange for reasonable notification of the proposed agreement in the State or Territory in which the agreement area is located, whether on the internet, in a newspaper circulating generally in the State or Territory, on the radio or otherwise; and
(b) give interested persons an opportunity to comment on the proposed agreement.
The period for comment must be at least 3 months.
(7) The agreement must not be made before the end of the period for comment.
Prior extinguishment to be disregarded
(8) For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests in relation to the agreement area by any of the following acts must be disregarded:
(a) the setting aside, granting or vesting mentioned in subsection (3);
(b) the creation of any other prior interest in relation to the agreement area;
(c) if:
(i) the agreement under paragraph (1)(b) includes a statement of a kind mentioned in subsection (4); or
(ii) there is an agreement under subsection (5);
the construction or establishment of any relevant public works that are the subject of the agreement concerned.
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
(9) If the determination on the application is that native title rights and interests exist in the agreement area:
(a) the determination does not affect:
(i) the validity of the setting aside, granting or vesting; or
(ii) the validity of the creation of any other prior interest in relation to the agreement area; or
(iii) any interest of the Crown in any capacity, or of any statutory authority, or of any other person, in any public works on the land or waters concerned (whether or not a relevant public work that is the subject of an agreement), or access to such public works; or
(iv) any existing public access to the agreement area; and
(b) the non-extinguishment principle applies to the setting aside, granting or vesting or the creation of any other prior interest in relation to the agreement area.
Exclusion of Crown ownership of natural resources
(10) 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.
Definitions
(11) In this section:
"Crown land " means:
(a) land that has not been alienated from the Crown in right of the Commonwealth, a State or a Territory by a grant of an estate in fee simple; or
(b) land that has been so alienated, but has been resumed by, or has reverted to or been acquired by, the Crown.
"relevant public work " , in relation to the Commonwealth, a State or a Territory, means a public work:
(a) constructed or established directly by the Commonwealth, the State or the Territory; or
(b) constructed or established by another person on behalf of the Commonwealth, the State or the Territory.
3 Subsection 61A(4) (heading)
Omit " or 47B ", substitute " , 47B or 47C ".
4 Paragraphs 61A(4)(a) and (b)
Omit "or 47B", substitute ", 47B or 47C".
5 After paragraph 62(1)(c)
Insert:
; and (d) if the operation of section 47C (national parks etc. covered by native title applications) has been agreed to in writing in accordance with paragraph 47C(1)(b) in relation to the whole or any part of the area covered by the application--must be accompanied by a copy of the agreement, and if there is an agreement under subsection 47C(5), that agreement.
6 After paragraph 63(b)
Insert:
(ba) any copy of an agreement that accompanies the application under paragraph 62(1)(d) or subsection 62(7); and
7 Subsection 64(2) (heading)
Omit " Exception ", substitute " Exceptions ".
8 After subsection 64(2)
Insert:
(2A) In addition, subsection (1) does not prevent an amendment that results in the inclusion of any area of land or waters that was not covered by the original application, if the operation of section 47C has been agreed to in writing in accordance with paragraph 47C(1)(b) in relation to the area after the making of the original application.
9 At the end of subsection 66A(1)
Add:
; and (f) if the inclusion of any area of land or waters that was not covered by the original application occurs as mentioned in subsection 64(2A)--give notice to each other person to whom the Registrar would be obliged to give notice under subsections 66(3) and (5) if the application as amended were a new application, but to whom notice is not already required to be given under paragraph (d) or (e).
10 Before subsection 66A(1B)
Insert:
Notification day
11 Subsection 66A(1B)
After "paragraph", insert "(1)(f) or".
12 Paragraph 82(3)(a)
After "section 47C", insert "of that Act".
13 Subparagraph 84(3)(b)(ii)
Omit "paragraph 66A(1A)(e)", substitute "paragraph 66A(1)(f) or (1A)(e)".
14 After subparagraph 190A(6A)(d)(ii)
Insert:
(iia) give effect to the operation of section 47C in relation to the application as mentioned in subsection 64(2A);
15 Paragraph 190B(9)(c)
Omit "or 47B(2)", substitute ", 47B(2) or 47C(8)".
16 Application
(1) The amendments made by this Part apply in relation to any claimant application or revised native title determination application:
(a) that is made after the commencement of this item; or
(b) that was made before that commencement, but has not been determined as at that commencement.
Note: This subitem applies in relation to amendments made by Divisions 1 and 2 of this Part.
(2) To avoid doubt, an application mentioned in paragraph (1)(b) may be amended to state that the operation of section 47C of the Native Title Act 1993 has been agreed in relation to the whole or any part of the area covered by the application.
Division 2--Amendments commencing immediately after Part 2 of Schedule 4
17 At the end of section 62
Add:
Revised native title determination applications
(7) A revised native title determination application that covers an area in relation to which the operation of section 47C (national parks etc. covered by native title applications) has been agreed to in writing in accordance with paragraph 47C(1)(b) must be accompanied by a copy of the agreement and, if there is an agreement under subsection 47C(5), that agreement.
Part 2 -- Pastoral leases held by native title claimants
18 Subparagraph 47(1)(b)(iii)
After "shareholders", insert "or, in the case of a body corporate without shareholders, members".
19 Application
The amendment of subparagraph 47(1)(b)(iii) of the Native Title Act 1993 made by this Part applies in relation to any application under section 61 of that Act:
(a) that is made after the commencement of this item; or
(b) that was made before that commencement, but has not been determined as at that commencement.