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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
Aboriginal and Torres Strait
Islander Land Holding
Bill 2012
Queensland
Aboriginal and Torres Strait Islander Land
Holding Bill 2012
Contents
Page
Part 1 Preliminary
Division 1 Introduction
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3 Main object of Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4 Achieving Act's main object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5 Approach adopted in applying ALA or TSILA. . . . . . . . . . . . . . . . 13
6 All rights under 1985 Land Holding Act to be dealt with under this Act 14
7 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Division 2 Interpretation
8 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9 Meaning of lease entitlement and holder of lease entitlement . . . 15
10 Meaning of trust area and trustee . . . . . . . . . . . . . . . . . . . . . . . . 16
Part 2 Transition from 1985 Land Holding Act to this Act
Division 1 Adjustment of status of land affected by 1985 Land Holding
Act
11 Return of land previously divested under 1985 Land Holding Act 17
12 Continuation of 1985 Act granted leases . . . . . . . . . . . . . . . . . . . 17
Division 2 Advice to Minister
13 Establishment of community reference panels . . . . . . . . . . . . . . . 19
Part 3 Lease entitlements
Division 1 Introduction
14 Operation of pt 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Division 2 Publication of lease entitlement notices
15 Chief executive to publish lease entitlement notice . . . . . . . . . . . 21
16 Requirements for lease entitlement notice . . . . . . . . . . . . . . . . . . 21
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Contents
17 Replacement lease entitlement notice . . . . . . . . . . . . . . . . . . . . . 22
Division 3 Trust area notice
18 Chief executive to notify trustee about lease entitlements . . . . . . 22
19 Chief executive to notify trustee if no lease entitlements . . . . . . . 23
20 Publication of trust area notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Division 4 Addition to and replacement of lease entitlement notices
21 Time limits for application under this division . . . . . . . . . . . . . . . . 23
22 Application for publication of lease entitlement notice . . . . . . . . . 24
23 Appeal to Land Court against refusal to publish lease entitlement notice
25
24 Application for replacement of lease entitlement notice ...... 26
25 Appeal to Land Court about decision on application for replacement of
lease entitlement notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Division 5 Lease entitlement not established
26 Hardship certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Division 6 Surrender of lease entitlement
27 Surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Part 4 Identification of practical obstacles
28 Operation of pt 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
29 What are practical obstacles . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
30 Minister refers lease entitlement notice to community reference panel
or reference entity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
31 Minister advises of obstacles and gives statement of reasons. . . 32
32 Application about statement of reasons (obstacles). . . . . . . . . . . 32
33 Refusal to amend statement of reasons (obstacles) . . . . . . . . . . 33
Part 5 Grants of leases to satisfy lease entitlements
Division 1 Introduction
34 Operation of pt 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Division 2 Granting lease to satisfy lease entitlement if no obstacles to
grant
35 Minister may grant lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Division 3 Application to proceed immediately with the grant of a
lease
36 Application to proceed immediately with the grant of a lease. . . . 36
37 Consideration of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
38 Refusal to proceed immediately with grant of lease . . . . . . . . . . . 38
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Contents
Division 4 Granting lease to satisfy lease entitlement if obstacles to
grant
Subdivision 1 Deferred grants generally
39 Minister may make deferred grant of lease . . . . . . . . . . . . . . . . . 39
Subdivision 2 Consultation or agreement before deferred grant
40 Purpose of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
41 Minister may rely on advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
42 Reference to community reference panel. . . . . . . . . . . . . . . . . . . 40
43 Persons to be consulted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
44 Location of lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
45 Ownership of improvements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Subdivision 3 Agreed deferred grant
46 Minister may make agreed deferred grant . . . . . . . . . . . . . . . . . . 41
Subdivision 4 Contested deferred grant
47 Application to Land Court in absence of agreement . . . . . . . . . . 42
48 Decision of Land Court for contested deferred grant . . . . . . . . . . 43
49 Compensation for grantee in circumstances of contested deferred grant
44
Division 5 New Act granted leases generally
50 New Act granted leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Part 6 Boundary relocations for particular 1985 Act granted leases
Division 1 Introduction
51 Operation of pt 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Division 2 Consultation about boundary relocations
52 Consultation about boundaries of lease . . . . . . . . . . . . . . . . . . . . 46
Division 3 Agreed boundary relocation
53 Application to Land Court in case of agreement . . . . . . . . . . . . . 47
54 Decision of Land Court for agreed boundary relocation. . . . . . . . 48
Division 4 Contested boundary relocation
55 Application to Land Court in absence of agreement . . . . . . . . . . 49
56 Decision of Land Court for contested boundary relocation . . . . . 49
57 Compensation for lessee in circumstances of contested boundary
relocation ..................................... 50
Division 5 Recording boundary relocation
58 Recording of boundary relocation . . . . . . . . . . . . . . . . . . . . . . . . 51
Part 7 Ownership of structural improvements
59 Ownership of improvements continues . . . . . . . . . . . . . . . . . . . . 52
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Contents
60 Agreement or arrangement for 1985 Land Holding Act, s 15 . . . . 52
61 Gazette notice for completed agreement or arrangement . . . . . . 53
62 Use of valuation methodology for social housing dwelling . . . . . . 53
Part 8 Conditions and requirements applying to leases
Division 1 Conditions and requirements applying to leases other than
term leases
63 Operation of div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
64 Dealings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
65 Registration of dealings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
66 Lease for residential purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
67 Subleases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
68 Surrenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Division 2 Term leases
69 Entitlement to apply for lease under ALA or TSILA . . . . . . . . . . . 58
Part 9 Application of provisions of ALA or TSILA
Division 1 Applying ALA or TSILA
70 ALA provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
71 TSILA provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Division 2 Applying ALA
Subdivision 1 All land
72 Non-application of ALA, s 98 (Requirement for consultation). . . . 60
73 Applying ALA, pt 10, div 6 (Forfeiture and renewal of residential
leases) .......................................... 60
Subdivision 2 Aboriginal land
74 Applying ALA, pt 14 (Provisions about mortgages of leases over
Aboriginal land) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Subdivision 3 Aboriginal trust land
75 Definition for sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
76 Applying ALA, s 185 (Relationship with Land Act) . . . . . . . . . . . . 62
77 Applying ALA, s 187 (Amending trustee (Aboriginal) lease) . . . . 62
78 Applying ALA, s 188 (Mortgage of trustee (Aboriginal) lease) . . . 62
Division 3 Applying TSILA
Subdivision 1 All land
79 Non-application of TSILA, s 65 (Requirement for consultation) . . 63
80 Applying TSILA, pt 8, div 6 (Forfeiture and renewal of leases for
private residential purposes) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Contents
Subdivision 2 Torres Strait Islander land
81 Applying TSILA, pt 10 (Provisions about mortgages of leases
over Torres Strait Islander land) . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Subdivision 3 Torres Strait Islander trust land
82 Definition for sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
83 Applying TSILA, s 141 (Relationship with Land Act) . . . . . . . . . . 65
84 Applying TSILA, s 143 (Amending trustee (Torres Strait Islander)
lease) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
85 Applying TSILA, s 144 (Mortgage of trustee (Torres Strait
Islander) lease). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Part 10 Miscellaneous
86 Plans of survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
87 Limitation on qualification requirement. . . . . . . . . . . . . . . . . . . . . 66
88 Delegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
89 Application to Land Court if no interested persons identified . . . . 67
90 Information Privacy Act does not stop sharing of information
necessary for effective operation of this Act . . . . . . . . . . . . . . . . . 68
91 Review of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
92 Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
93 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Part 11 Repeal and transitional provisions
94 Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
95 Continuation of proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
96 Effect of regulation amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Part 12 Amendment of Acts
Division 1 Amendment of this Act
97 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
98 Amendment of long title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Division 2 Amendment of Aboriginal Land Act 1991
Subdivision 1 Act amended
99 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Subdivision 2 Amendments for use of Aboriginal land
100 Amendment of s 45 (Existing interests) . . . . . . . . . . . . . . . . . . . . 71
101 Insertion of new s 45A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
45A Existing interests held by local government . . . . . . . . 71
102 Amendment of s 199 (Use of Aboriginal land preserved). . . . . . . 72
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Contents
Subdivision 3 Other amendments
103 Amendment of s 45 (Existing interests) . . . . . . . . . . . . . . . . . . . . 72
104 Amendment of s 62 (Tribunal to notify making of claims) . . . . . . . 72
105 Amendment of s 104 (Transfer of Aboriginal land) . . . . . . . . . . . . 72
106 Amendment of s 120 (Restrictions on grant of standard lease to
an Aborigine) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
107 Amendment of s 132 (Lessee of townsite lease taken to be
lessor of existing leases) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
108 Amendment of s 142 (Leases for private residential purposes--
general conditions and requirements) . . . . . . . . . . . . . . . . . . . . . 73
109 Amendment of s 146 (Lease, sublease and particular dealings
to be registered) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
110 Amendment of s 147 (Definitions for div 6) . . . . . . . . . . . . . . . . . 73
111 Amendment of pt 12 hdg (Provision about particular claimable
land) .......................................... 74
112 Amendment of s 202 hdg (Application of Mineral Resources Act) 74
113 Amendment of s 243 hdg (Staff of tribunal employed under Public
Service Act) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
114 Amendment of sch 1 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 74
Division 3 Amendment of Environmental Protection Act 1994
115 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
116 Amendment of s 38 (Who is an affected person for a project) . . . 75
117 Amendment of s 579 (Compensation) . . . . . . . . . . . . . . . . . . . . . 75
Division 4 Amendment of Land Act 1994
Subdivision 1 Act amended
118 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Subdivision 2 Amendment for subdivision of DOGIT land
119 Amendment of s 34P (Requirement about covenant for DOGIT land) 76
Subdivision 3 Amendments for indigenous cultural interests
120 Amendment of s 155 (Length of term leases) . . . . . . . . . . . . . . . 77
121 Amendment of s 155B (Extensions for a term of up to 50 years). 77
122 Amendment of s 155BA (Extensions for a term of up to 75 years) 78
123 Amendment of s 155D (When Minister may reduce) . . . . . . . . . . 79
124 Amendment of s 159 (General provisions for deciding application) 79
125 Insertion of new s 188A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
188A Limited rent discount for particular leases . . . . . . . . . 79
126 Replacement of s 199A (Land may be used only for tenure's
purpose) ........................................ 81
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Contents
199A Land may be used only for tenure's purpose . . . . . . . 81
127 Insertion of new ss 202AA and 202AB. . . . . . . . . . . . . . . . . . . . . 81
202AA Notice to transferee if lease land subject to
indigenous cultural interest. . . . . . . . . . . . . . . . . . . . . 82
202AB Notice to sublessee if lease land is or is to be subject to
indigenous cultural interest. . . . . . . . . . . . . . . . . . . . . 82
128 Amendment of s 325 (Effect of registration of transfer) . . . . . . . . 83
129 Insertion of new ch 6, pt 4, div 8D . . . . . . . . . . . . . . . . . . . . . . . . 83
Division 8D Indigenous cultural interests
Subdivision 1 Preliminary
373ZB Definitions for div 8D . . . . . . . . . . . . . . . . . . . . . . . . . 83
Subdivision 2 Mandatory terms
373ZC Mandatory terms for approved agreements . . . . . . . . 84
Subdivision 3 Creation and registration
373ZD Creation only by registration. . . . . . . . . . . . . . . . . . . . 85
373ZE Requirements for registration . . . . . . . . . . . . . . . . . . . 86
Subdivision 4 Amendments and dealings
373ZF Amending interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
373ZG When amendment or replacement of approved
agreement ends interest. . . . . . . . . . . . . . . . . . . . . . . 88
373ZH Surrendering or removing interest . . . . . . . . . . . . . . . 88
373ZI Notice of end of approved agreement . . . . . . . . . . . . 89
373ZJ Continuation of interest . . . . . . . . . . . . . . . . . . . . . . . 89
373ZK Transfer of lease affecting interest . . . . . . . . . . . . . . . 91
373ZL Reviewing approved agreements for indigenous
cultural interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
130 Amendment of s 392 (Delegation by Minister) . . . . . . . . . . . . . . . 92
131 Amendment of s 393 (Delegation by chief executive) . . . . . . . . . 92
132 Amendment of sch 1A (Provisions that include mandatory
conditions for tenures) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
133 Insertion of new sch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Schedule 3 Requirements for approved agreements
134 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 98
Division 5 Amendment of Land Court Act 2000
135 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
136 Amendment of s 32A (Indigenous assessors) . . . . . . . . . . . . . . . 100
137 Amendment of s 32C (Allocation of indigenous assessor for a
proceeding in the cultural heritage division) . . . . . . . . . . . . . . . . . 100
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Contents
138 Amendment of s 32D (Role of indigenous assessor for a
proceeding) ..................................... 101
139 Amendment of s 32J (Land Court has power of the Supreme
Court for particular purposes) . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
140 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 101
Division 6 Amendment of Mineral Resources Act 1989
141 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
142 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 102
Division 7 Amendment of Survey and Mapping Infrastructure Act 2003
143 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
144 Amendment of s 21 (Power to place a permanent survey mark) . 103
145 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 103
Division 8 Amendment of Sustainable Planning Act 2009
146 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
147 Amendment of sch 3 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 104
Division 9 Amendment of Sustainable Planning Regulation 2009
148 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
149 Amendment of sch 3 (Assessable development, self-assessable
development and type of assessment). . . . . . . . . . . . . . . . . . . . . 104
150 Amendment of sch 4 (Development that can not be declared to
be development of a particular type--Act, section 232(2)). . . . . . 104
Division 10 Amendment of Torres Strait Islander Land Act 1991
Subdivision 1 Act amended
151 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Subdivision 2 Amendments for use of Torres Strait Islander land
152 Amendment of s 41 (Existing interests) . . . . . . . . . . . . . . . . . . . . 105
153 Insertion of new s 41A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
41A Existing interests held by local government . . . . . . . . 105
154 Amendment of s 148 (Use of Torres Strait Islander land preserved) 106
Subdivision 3 Other amendments
155 Amendment of s 41 (Existing interests) . . . . . . . . . . . . . . . . . . . . 106
156 Amendment of s 97 (Lessee of townsite lease taken to be
lessor of existing leases) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
157 Amendment of s 107 (Leases for private residential purposes--
general conditions and requirements) . . . . . . . . . . . . . . . . . . . . . 107
158 Amendment of s 111 (Particular dealings to be registered) . . . . . 107
159 Amendment of s 112 (Definitions for div 6) . . . . . . . . . . . . . . . . . 107
160 Amendment of s 142 (Trustee (Torres Strait Islander) leases) . . . 108
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161 Amendment of sch 1 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 108
Division 11 Amendment of Vegetation Management Act 1999
162 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
163 Amendment of schedule (Dictionary) . . . . . . . . . . . . . . . . . . . . . . 108
Division 12 Amendment of Wild Rivers Regulation 2007
164 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
165 Amendment of s 3 (Specified works--other infrastructure (Act,
s 48)) .......................................... 109
Schedule Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Page 9
2012
A Bill
for
An Act to make ongoing provision for particular matters arising
under the Aborigines and Torres Strait Islanders (Land
Holding) Act 1985 and to repeal that Act, and to amend this Act,
the Aboriginal Land Act 1991, the Environmental Protection Act
1994, the Land Act 1994, the Land Court Act 2000, the Mineral
Resources Act 1989, the Survey and Mapping Infrastructure
Act 2003, the Sustainable Planning Act 2009, the Sustainable
Planning Regulation 2009, the Torres Strait Islander Land Act
1991, the Vegetation Management Act 1999 and the Wild Rivers
Regulation 2007 for particular purposes
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 1 Preliminary
[s 1]
The Parliament of Queensland enacts-- 1
Part 1 Preliminary 2
Division 1 Introduction 3
1 Short title 4
This Act may be cited as the Aboriginal and Torres Strait 5
Islander Land Holding Act 2012. 6
2 Commencement 7
This Act, other than the following provisions, commences on 8
a day to be fixed by proclamation-- 9
(a) part 12, division 2, subdivisions 1 and 2; 10
(b) part 12, division 4; 11
(c) part 12, division 10, subdivisions 1 and 2. 12
3 Main object of Act 13
The main object of this Act is-- 14
(a) to provide a framework for identifying and satisfying 15
entitlements to grants of leases that are outstanding 16
under the 1985 Land Holding Act, including by dealing 17
with practical obstacles to satisfying the entitlements; 18
and 19
(b) to resolve boundary problems affecting particular 1985 20
Act granted leases; and 21
(c) to the extent practicable, to apply the Aboriginal Land 22
Act 1991 or the Torres Strait Islander Land Act 1991 to 23
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 1 Preliminary
[s 4]
both 1985 Act granted leases and new Act granted 1
leases. 2
4 Achieving Act's main object 3
(1) Achieving this Act's main object includes the following-- 4
(a) the identification of outstanding lease entitlements; 5
(b) consultation, negotiation and agreement aimed at 6
resolving practical obstacles to satisfying lease 7
entitlements; 8
(c) consultation, negotiation and agreement aimed at 9
resolving boundary problems affecting some 1985 Act 10
granted leases. 11
(2) This Act allows for the deferral of the grant of a lease to 12
satisfy a lease entitlement, having regard to the practical 13
obstacles that may be identified. 14
(3) The purpose of a deferral is not to diminish a right to the grant 15
of the lease, but is intended-- 16
(a) to allow the resolution of the obstacles by agreement or 17
a decision of the Land Court; and 18
(b) to ensure the grant, when made, is not affected by the 19
obstacles in the way that would otherwise happen if 20
there was a grant of the lease without an attempt at 21
resolution. 22
5 Approach adopted in applying ALA or TSILA 23
(1) This Act provides for the continuation of 1985 Act granted 24
leases and the granting of new Act granted leases, and for the 25
conditions applying to the leases, in a way that-- 26
(a) takes account of rights and obligations under the 1985 27
Land Holding Act; and 28
(b) to the extent practicable, adopts the regime governing 29
land and tenure management under ALA and TSILA. 30
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 1 Preliminary
[s 6]
(2) This Act also provides for the return to each trust area of land 1
divested from the area under the 1985 Land Holding Act to 2
ensure that land leased under the 1985 Land Holding Act or 3
this Act can be-- 4
(a) effectively administered as part of the trust area; and 5
(b) otherwise dealt with substantially under ALA or TSILA 6
as may be applicable. 7
(3) In providing for the continuation of 1985 Act granted leases 8
and the granting of new Act granted leases, this Act provides 9
for the application of ALA or TSILA to the leases to the 10
extent practicable. 11
6 All rights under 1985 Land Holding Act to be dealt with 12
under this Act 13
A right a person may have had under the 1985 Land Holding 14
Act to be granted a lease under that Act may be satisfied only 15
in the form of a grant to satisfy a lease entitlement as provided 16
for under this Act. 17
7 Act binds all persons 18
(1) This Act binds all persons, including the State and, to the 19
extent the legislative power of the Parliament permits, the 20
Commonwealth and the other States. 21
(2) Nothing in this Act makes the State liable to be prosecuted for 22
an offence. 23
Division 2 Interpretation 24
8 Definitions 25
The dictionary in the schedule defines particular words used 26
in this Act. 27
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 1 Preliminary
[s 9]
9 Meaning of lease entitlement and holder of lease 1
entitlement 2
(1) A lease entitlement is an entitlement to be granted a lease to 3
satisfy an entitlement under the 1985 Land Holding Act. 4
(2) A lease entitlement exists if all of the following circumstances 5
apply-- 6
(a) a person made an application under the 1985 Land 7
Holding Act, section 5 to be granted a lease under the 8
authority of that Act within a trust area (the trust area 9
for the lease entitlement); 10
(b) the application for the lease was made on or after 15 11
June 1985 but on or before 20 December 1991; 12
(c) the application for the lease was exhibited in the way, 13
and for the period, required under the 1985 Land 14
Holding Act, section 6(1)(a); 15
(d) either of the following has happened-- 16
(i) the trustee council for the application approved the 17
granting of the lease, whether or not notification of 18
the approval was given under the 1985 Land 19
Holding Act, section 6(1)(b); 20
(ii) the appeal tribunal approved the granting of the 21
lease; 22
(e) the lease was never granted under the 1985 Land 23
Holding Act. 24
(3) The holder of a lease entitlement is the person who, when the 25
granting of the lease was approved under the 1985 Land 26
Holding Act, was the applicant under that Act for the grant. 27
(4) In this section-- 28
appeal tribunal means an appeal tribunal as constituted under 29
the 1985 Land Holding Act. 30
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 1 Preliminary
[s 10]
10 Meaning of trust area and trustee 1
(1) A trust area is land that was at any time a trust area under the 2
1985 Land Holding Act. 3
(2) The trustee, of a trust area, is the entity that is-- 4
(a) to the extent land in the trust area is the subject of a deed 5
of grant in trust or a reserve under the Land Act--the 6
land's trustee under that Act; or 7
(b) to the extent land in the trust area is transferred land 8
under ALA or TSILA--the entity that, under ALA or 9
TSILA, holds the land. 10
(3) In a provision of this Act about a lease, or about a lease 11
entitlement or a lease entitlement notice-- 12
(a) a reference to the trustee of the trust area is taken to be a 13
reference to the trustee of the trust area, or the part of the 14
trust area, in which the lease land is located or in which 15
the land the subject of the lease entitlement or lease 16
entitlement notice is located; and 17
(b) a reference to a trust area is taken to be a reference to the 18
trust area, or the part of the trust area, in which the lease 19
land is located or in which the land the subject of the 20
lease entitlement or lease entitlement notice is located. 21
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 2 Transition from 1985 Land Holding Act to this Act
[s 11]
Part 2 Transition from 1985 Land 1
Holding Act to this Act 2
Division 1 Adjustment of status of land 3
affected by 1985 Land Holding Act 4
11 Return of land previously divested under 1985 Land 5
Holding Act 6
(1) On the commencement of this section, land within a trust area 7
that, under the 1985 Land Holding Act, section 10(1) or (2) 8
divested from, or passed from the control of, an entity, 9
becomes vested in the entity that is currently the trustee of the 10
trust area, or the part of the trust area, in which the land is 11
located in the same way it would have been vested if it had not 12
been divested. 13
Example-- 14
If the external boundaries of the trust area are the external boundaries of 15
a deed of grant in trust under the Land Act, the land vested under this 16
section becomes part of the deed of grant in trust land. 17
(2) The vesting of land under subsection (1) does not affect-- 18
(a) the continuation of any 1985 Act granted lease granted 19
over the land; or 20
(b) the ownership of a structural improvement located on 21
that land. 22
Note-- 23
See also section 12 and part 7. 24
(3) The chief executive, or, if appropriate, the registrar, must 25
make any necessary change in the appropriate register to 26
record the operation of subsection (1). 27
12 Continuation of 1985 Act granted leases 28
(1) This section applies if-- 29
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 2 Transition from 1985 Land Holding Act to this Act
[s 12]
(a) a lease was granted, or purportedly granted, in a trust 1
area before the commencement of the section; and 2
(b) the grant was, or purported to be, under the authority 3
of-- 4
(i) the 1985 Land Holding Act; or 5
(ii) another Act, but with reference being made to the 6
1985 Land Holding Act; or 7
(iii) the 1985 Land Holding Act and another Act; and 8
Example for paragraph (b)(iii)-- 9
The wording of an instrument issued for the grant of a 10
lease may have indicated that the lease was granted under 11
both the Aborigines and Torres Strait Islanders (Land 12
Holding) Act 1985 and the Land Act. 13
(c) the lease was still in force, or purportedly still in force, 14
immediately before the repeal of the 1985 Land Holding 15
Act. 16
Example for paragraph (c)-- 17
The lease was not surrendered before the repeal of the 1985 18
Land Holding Act. 19
(2) For this Act, the lease is a 1985 Act granted lease. 20
(3) A 1985 Act granted lease-- 21
(a) is taken to have been a validly granted lease from when 22
it was granted or purportedly granted until the repeal of 23
the 1985 Land Holding Act; and 24
(b) for all purposes is taken to have been granted solely 25
under the authority of the 1985 Land Holding Act; and 26
(c) continues in force despite the repeal of the 1985 Land 27
Holding Act. 28
(4) From the commencement of this section, the lessor of a 1985 29
Act granted lease is taken to be-- 30
(a) the trustee of the trust area; or 31
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 2 Transition from 1985 Land Holding Act to this Act
[s 13]
(b) if the lease land is also the subject of a townsite lease 1
under ALA or TSILA--the lessee under the townsite 2
lease. 3
(5) If, under the 1985 Land Holding Act, a 1985 Act granted lease 4
was granted as a lease in perpetuity, the lease continues as a 5
lease granted in perpetuity and for the same purpose as the 6
purpose for which the 1985 Act granted lease was granted. 7
(6) If, under the 1985 Land Holding Act, a 1985 Act granted lease 8
was granted as a lease for a term of years, the lease continues 9
as a lease granted for the same term of years, and for the same 10
purpose, as the term and purpose for which the 1985 Act 11
granted lease was granted. 12
(7) A 1985 Act granted lease-- 13
(a) continues to be subject to conditions recorded on the 14
instrument of lease for the 1985 Act granted lease, other 15
than, for a lease granted in perpetuity, any conditions 16
providing, or purporting to provide, for the rent payable 17
under the lease; and 18
(b) as a continuing lease, is subject to-- 19
(i) the conditions provided for under part 8; and 20
(ii) the provisions of ALA or TSILA as provided for 21
under part 9. 22
(8) The chief executive, or if appropriate, the registrar, may make 23
any necessary change in the appropriate register to record the 24
operation of this section, including to record this Act as the 25
authority for the continuation of a 1985 Act granted lease. 26
Division 2 Advice to Minister 27
13 Establishment of community reference panels 28
(1) The Minister may establish a community reference panel for a 29
trust area to give information and advice to the Minister as 30
provided for under this Act. 31
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 3 Lease entitlements
[s 14]
(2) A community reference panel may include any of the 1
following-- 2
(a) the chief executive; 3
(b) any other chief executive having responsibilities in 4
relation to the trust area; 5
Examples for paragraph (b)-- 6
· the housing chief executive 7
· the chief executive of the department in which the Local 8
Government Act 2009 is administered 9
(c) any trustee of the trust area. 10
(3) A member of a community reference panel may be 11
represented at a meeting of the panel by a person nominated 12
by the member. 13
(4) A community reference panel may invite persons, or 14
representatives of persons, likely to be affected by issues for 15
consideration by the panel to participate in the panel's 16
consideration of the matters. 17
Examples for subsection (4)-- 18
· native title parties 19
· the local government with responsibility for the trust area 20
Part 3 Lease entitlements 21
Division 1 Introduction 22
14 Operation of pt 3 23
This part establishes a process for-- 24
(a) the chief executive to publish information about lease 25
entitlements; and 26
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 3 Lease entitlements
[s 15]
(b) persons to apply to the chief executive to publish or 1
replace published information about lease entitlements. 2
Division 2 Publication of lease entitlement 3
notices 4
15 Chief executive to publish lease entitlement notice 5
The chief executive must publish a notice (a lease entitlement 6
notice) for each lease entitlement within a trust area of which 7
the chief executive is aware. 8
16 Requirements for lease entitlement notice 9
(1) A lease entitlement notice for a lease entitlement must be 10
published on the department's website. 11
(2) The lease entitlement notice must include all information 12
about the lease entitlement reasonably able to be included in 13
the notice. 14
(3) Without limiting subsection (2), the notice must-- 15
(a) identify the trust area for the lease entitlement; and 16
(b) include the identification number of the original 17
application for the lease entitlement, if known; and 18
(c) identify the holder of the lease entitlement; and 19
(d) to the extent reasonably practicable, give a description 20
of the lease entitlement land; and 21
(e) state the date of the notice. 22
(4) The chief executive may publish a lease entitlement notice for 23
a lease entitlement only if the chief executive is satisfied about 24
the existence of the lease entitlement. 25
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 3 Lease entitlements
[s 17]
17 Replacement lease entitlement notice 1
The chief executive may publish a lease entitlement notice to 2
replace a lease entitlement notice currently in force on the 3
basis of further or more accurate information obtained by the 4
chief executive. 5
Division 3 Trust area notice 6
18 Chief executive to notify trustee about lease entitlements 7
(1) This section applies if the chief executive is satisfied that 8
substantially all of the lease entitlement notices for a trust area 9
have been published. 10
(2) The chief executive may give a written notice to the trustee of 11
the trust area (a trust area notice) to advise the trustee of all 12
lease entitlement notices that have been published for lease 13
entitlements for the trust area. 14
(3) The trust area notice must-- 15
(a) identify the trust area; and 16
(b) include a copy of all lease entitlement notices that have 17
been published for the trust area; and 18
(c) state the date of the notice; and 19
(d) include a statement that a person has 18 months from 20
the date of the notice to apply to the chief executive to 21
publish-- 22
(i) a lease entitlement notice for a lease entitlement 23
not included in the trust area notice; or 24
(ii) a replacement lease entitlement notice for a lease 25
entitlement notice that is included in the trust area 26
notice but that is incorrect. 27
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 3 Lease entitlements
[s 19]
19 Chief executive to notify trustee if no lease entitlements 1
(1) The chief executive may give a written notice to the trustee of 2
a trust area (also a trust area notice) if the chief executive is 3
satisfied that no lease entitlements exist for the trust area. 4
(2) The trust area notice must-- 5
(a) identify the trust area; and 6
(b) state the date of the notice; and 7
(c) include a statement that a person has 18 months from 8
the date of the notice to apply to the chief executive to 9
publish a lease entitlement notice for the trust area. 10
20 Publication of trust area notice 11
(1) The chief executive must publish a trust area notice on the 12
department's website. 13
(2) The chief executive may ask the trustee of a trust area-- 14
(a) to display a copy of a trust area notice in a prominent 15
location in a trust area for a stated period; and 16
(b) to keep a copy of the notice available for inspection at a 17
suitable location in the trust area for a stated period. 18
Division 4 Addition to and replacement of 19
lease entitlement notices 20
21 Time limits for application under this division 21
(1) This division provides for a person to apply to the chief 22
executive to publish or replace a lease entitlement notice for a 23
trust area. 24
(2) Subject to subsection (3), an application under this division 25
can not be made later than 18 months after the date of the trust 26
area notice for the trust area. 27
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Part 3 Lease entitlements
[s 22]
(3) However, a person may apply to the chief executive under this 1
division at any time if no trust area notice for the trust area has 2
been given by the chief executive. 3
(4) The period stated under subsection (2) applies whether or not 4
the trust area notice has been displayed by the trustee in 5
compliance with a request from the chief executive under 6
section 20. 7
22 Application for publication of lease entitlement notice 8
(1) A person (the applicant) may apply to the chief executive to 9
publish a lease entitlement notice for a lease entitlement in a 10
trust area. 11
(2) The applicant must give the chief executive information and 12
documents in the applicant's possession to identify the details 13
of the lease entitlement, including its holder. 14
(3) If the applicant and the person identified as the holder of the 15
lease entitlement are not the same person, the applicant must 16
include with the application information to satisfy the chief 17
executive that it is reasonable in the circumstances for the 18
applicant to be making the application. 19
(4) The chief executive may ask the applicant to provide further 20
information to support the application within a stated 21
reasonable period. 22
(5) The chief executive must decide the application, and advise 23
the applicant of the decision, within-- 24
(a) 6 months after the application was made; or 25
(b) 6 months after the application was made together with 26
any time the chief executive reasonably requires to deal 27
with additional information given by the applicant. 28
(6) The chief executive may decide the application if the 29
applicant does not provide additional information within the 30
stated period. 31
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Part 3 Lease entitlements
[s 23]
(7) The chief executive may grant the application only if the chief 1
executive is satisfied about the existence of the lease 2
entitlement as identified in the application. 3
(8) If the chief executive grants the application, the chief 4
executive must-- 5
(a) publish the lease entitlement notice on the department's 6
website; and 7
(b) give a copy of the lease entitlement notice to the trustee 8
of the trust area. 9
(9) If the chief executive refuses the application, the chief 10
executive must give a notice to the applicant advising of the 11
refusal and include the chief executive's reasons for the 12
decision to refuse. 13
23 Appeal to Land Court against refusal to publish lease 14
entitlement notice 15
(1) This section applies if the chief executive refuses an 16
application to publish a lease entitlement notice. 17
(2) The applicant may appeal to the Land Court against the 18
decision. 19
(3) The appeal must be started within 28 days after the applicant 20
is given notice of the chief executive's decision to refuse the 21
application. 22
(4) The parties to the appeal are-- 23
(a) the applicant; and 24
(b) the chief executive. 25
(5) If the Land Court decides that the lease entitlement notice 26
should be published, the Land Court's decision must include 27
the details of the lease entitlement to be included in the notice. 28
(6) It is not necessary for the details mentioned in subsection (5) 29
to be consistent in every respect with the details included in 30
the application as dealt with by the chief executive. 31
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 3 Lease entitlements
[s 24]
24 Application for replacement of lease entitlement notice 1
(1) A person (the applicant) may apply to the chief executive to 2
publish a lease entitlement notice to replace a lease 3
entitlement notice currently in force for a trust area because 4
the lease entitlement notice does not accurately state the 5
details of a lease entitlement. 6
(2) The applicant must give the chief executive information and 7
documents in the applicant's possession to identify the details 8
of the notice applied for. 9
(3) If the applicant and the person identified, or proposed to be 10
identified, as the holder of the lease entitlement under the 11
replacement notice are not the same person, the applicant 12
must include with the application information to satisfy the 13
chief executive that it is reasonable in the circumstances for 14
the applicant to be making the application. 15
(4) The chief executive may ask the applicant to provide further 16
information to support the application within a stated 17
reasonable period. 18
(5) The chief executive must decide the application, and advise 19
the applicant of the decision, within-- 20
(a) 6 months after the application was made; or 21
(b) 6 months after the application was made together with 22
any time the chief executive reasonably requires to deal 23
with additional information given by the applicant. 24
(6) The chief executive may decide the application if the 25
applicant does not provide additional information within the 26
stated period. 27
(7) If the chief executive decides to grant the application, it is not 28
necessary for the decision to provide for a replacement lease 29
entitlement notice that is consistent in every respect with the 30
details included in the application. 31
(8) However, the chief executive must be satisfied about the 32
existence of the lease entitlement as identified in the 33
replacement lease entitlement notice as proposed by the chief 34
executive. 35
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 3 Lease entitlements
[s 25]
(9) If the chief executive grants the application, the chief 1
executive must publish a lease entitlement notice on the 2
department's website to replace the existing lease entitlement 3
notice. 4
(10) If the chief executive refuses the application, or if the 5
application is granted but the chief executive's decision 6
provides for a replacement notice inconsistent with the 7
application, the chief executive must give a notice to the 8
applicant advising of the decision and include the chief 9
executive's reasons for the decision. 10
(11) If, under this section, the chief executive decides to publish a 11
replacement lease entitlement notice, the chief executive must 12
give a copy of the replacement lease entitlement notice, and 13
the chief executive's reasons for the decision, to-- 14
(a) the trustee of the trust area; and 15
(b) any person the chief executive reasonably considers to 16
be an affected person for the decision, including, for 17
example, a person named in the lease entitlement notice 18
proposed to be replaced. 19
25 Appeal to Land Court about decision on application for 20
replacement of lease entitlement notice 21
(1) This section applies if, under section 24, the chief executive 22
decides an application from a person to publish a lease 23
entitlement notice replacing a lease entitlement notice 24
currently in force. 25
(2) The applicant may appeal to the Land Court against the 26
decision if-- 27
(a) the decision is to refuse the application; or 28
(b) the decision is to grant the application but in a way 29
mentioned in section 24(10). 30
(3) An affected person who was notified of the decision by the 31
chief executive may appeal to the Land Court against the 32
decision if-- 33
(a) the decision is to grant the application; or 34
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 3 Lease entitlements
[s 25]
(b) the decision is to grant the application but in a way 1
mentioned in section 24(10). 2
(4) An appeal by the applicant or an affected person must be 3
started within 28 days after the applicant or affected person is 4
given notice of the chief executive's decision on the 5
application. 6
(5) The parties to the appeal are-- 7
(a) the applicant; and 8
(b) the trustee for the trust area; and 9
(c) any affected person for the decision who was notified by 10
the chief executive; and 11
(d) the chief executive. 12
(6) If the appeal is by the applicant, the chief executive must 13
advise the applicant and the Land Court of each person 14
mentioned in subsection (5)(c) to ensure that each person may 15
be served. 16
(7) If the Land Court decides that a replacement lease entitlement 17
notice should be published, the Land Court's decision must 18
include the details of the lease entitlement to be included in 19
the replacement lease entitlement notice. 20
(8) It is not necessary for the details mentioned in subsection (7) 21
to be consistent in every respect with the details included in 22
the application as dealt with by the chief executive or in the 23
chief executive's decision granting the application. 24
(9) If the Land Court decides a replacement lease entitlement 25
notice should be published, the chief executive must give a 26
copy of the replacement lease entitlement notice to-- 27
(a) the trustee of the trust area; and 28
(b) any person the chief executive reasonably considers to 29
be an affected person for the decision. 30
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 3 Lease entitlements
[s 26]
Division 5 Lease entitlement not established 1
26 Hardship certificate 2
(1) The chief executive may give a person a certificate (a 3
hardship certificate) under this section if the chief executive 4
is satisfied all of the following circumstances apply-- 5
(a) an application for a lease was made by an applicant 6
under the 1985 Land Holding Act, section 5 on or after 7
15 June 1985 but on or before 20 December 1991; 8
(b) the trustee council for the application advised the 9
applicant, or otherwise gave the applicant to understand, 10
that the trustee council had approved the granting of the 11
lease to the applicant, whether or not notification of the 12
approval was given, or purportedly given, under the 13
1985 Land Holding Act, section 6(1)(b); 14
(c) either of the following acted in reliance on the advice of 15
the approval-- 16
(i) the applicant; 17
(ii) if the applicant is deceased--an interested person 18
in the estate of the deceased applicant; 19
(d) despite paragraph (b), the trustee council never lawfully 20
approved, under the 1985 Land Holding Act, the 21
granting of the lease; 22
(e) if the trustee council had lawfully approved the granting 23
of the lease, the chief executive would be authorised 24
under this Act to publish a lease entitlement notice of a 25
lease entitlement for the lease applied for. 26
(2) The hardship certificate must-- 27
(a) identify the person who was the applicant; and 28
(b) to the extent reasonably practicable, give a description 29
of the land that would have been the subject of the lease 30
entitlement; and 31
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 3 Lease entitlements
[s 27]
(c) include the identification number of the original 1
application for the lease entitlement, if known; and 2
(d) identify the person who is the recipient of the hardship 3
certificate. 4
Note-- 5
Under ALA, section 142(4) and TSILA, section 107(4), the existence of 6
a hardship certificate means the value of the lease land must be taken to 7
be nil. 8
(3) The chief executive may identify a person as the recipient of 9
the hardship certificate if the chief executive is satisfied that 10
the recipient would currently be entitled to be the lessee if the 11
application had been lawfully approved and the lease granted. 12
(4) In identifying the recipient, the chief executive may have 13
regard to the laws of succession. 14
Division 6 Surrender of lease entitlement 15
27 Surrender 16
(1) A lease entitlement may be surrendered-- 17
(a) completely; or 18
(b) to the extent of a part of the lease entitlement land. 19
(2) The surrender may be on the basis of the payment of an 20
agreed consideration for the surrender. 21
(3) If the holder is deceased, the chief executive may accept a 22
surrender from persons who are interested persons in the 23
estate of the deceased holder. 24
(4) If a lease entitlement is surrendered, the chief executive must 25
publish on the department's website the cancellation of the 26
lease entitlement notice for the lease entitlement. 27
(5) The publication of the notice ends the lease entitlement and no 28
further action may be taken under this Act to satisfy the 29
entitlement. 30
Page 30
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 4 Identification of practical obstacles
[s 28]
Part 4 Identification of practical 1
obstacles 2
28 Operation of pt 4 3
This part establishes a process for examining each lease 4
entitlement to identify practical obstacles that need to be 5
resolved before a lease can be granted to satisfy the lease 6
entitlement. 7
29 What are practical obstacles 8
(1) Without limiting what practical obstacles to satisfying a lease 9
entitlement may be identified under this Act, the following 10
could be expected to be identified as obstacles-- 11
(a) that the location of the area of the lease entitlement land 12
can not be clearly identified; 13
(b) that the ownership of improvements on the lease 14
entitlement land needs to be resolved; 15
(c) that competing interests in the lease entitlement land 16
need to be dealt with. 17
(2) However, the identification, or the need to obtain the 18
agreement, of an interested person in the estate of a deceased 19
holder of a lease entitlement is not a practical obstacle under 20
this Act. 21
30 Minister refers lease entitlement notice to community 22
reference panel or reference entity 23
(1) As soon as practicable after a lease entitlement notice is 24
published for a lease entitlement in a trust area, the Minister 25
must refer the notice to-- 26
(a) if there is a community reference panel for the trust 27
area--the community reference panel; or 28
(b) otherwise--the reference entity for the lease 29
entitlement. 30
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 4 Identification of practical obstacles
[s 31]
(2) The community reference panel or reference entity may, 1
within 3 months after the notice is referred to it-- 2
(a) identify to the Minister any practical obstacles it 3
considers to exist to satisfying the lease entitlement; and 4
(b) give the Minister any advice or recommendation it 5
considers appropriate about satisfying the lease 6
entitlement. 7
31 Minister advises of obstacles and gives statement of 8
reasons 9
(1) The Minister must consider any information, advice or 10
recommendation given to the Minister by the community 11
reference panel or reference entity under section 30 and 12
prepare a statement (a statement of reasons (obstacles)) about 13
satisfying the lease entitlement. 14
(2) The statement of reasons (obstacles) must-- 15
(a) identify, to the extent known-- 16
(i) the practical obstacles that exist to the granting of a 17
lease to satisfy the lease entitlement; and 18
(ii) the affected persons for the obstacles; and 19
(b) explain the Minister's reasons for identifying the 20
obstacles and affected persons. 21
(3) The Minister's statement of reasons (obstacles) may, if 22
appropriate, state that no practical obstacles exist to satisfying 23
the lease entitlement. 24
(4) The Minister must give the statement of reasons (obstacles) to 25
the reference entity for the lease entitlement. 26
(5) The chief executive must take reasonable steps to publish on 27
the department's website information about statements of 28
reasons (obstacles) that are in effect from time to time. 29
32 Application about statement of reasons (obstacles) 30
(1) This section applies if-- 31
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 4 Identification of practical obstacles
[s 33]
(a) a statement of reasons (obstacles) is currently in effect 1
for a lease entitlement; and 2
(b) the statement identifies practical obstacles; and 3
(c) a person (the relevant person) claims that there are no 4
practical obstacles to the grant of a lease to satisfy the 5
lease entitlement; and 6
(d) the relevant person is a proper applicant for the lease. 7
(2) The relevant person may apply to the Minister for the 8
statement of reasons (obstacles) to be amended to state that 9
there are no practical obstacles to the granting of a lease to 10
satisfy the lease entitlement. 11
(3) The Minister may ask the relevant person for further 12
information to support the application within a stated 13
reasonable period. 14
(4) The Minister must decide the application, and advise the 15
relevant person of the decision, within-- 16
(a) 28 days after the application was made; or 17
(b) 28 days after the application was made together with 18
any time the Minister reasonably requires to deal with 19
additional information given by the applicant. 20
(5) The Minister may decide the application if the applicant does 21
not provide additional information within the stated period. 22
33 Refusal to amend statement of reasons (obstacles) 23
(1) If the Minister refuses to amend the statement of reasons 24
(obstacles) in the way mentioned in section 32-- 25
(a) the notice to the relevant person advising of the decision 26
must include the Minister's reasons for the decision to 27
refuse; and 28
(b) the relevant person may appeal to the Land Court 29
against the decision; and 30
(c) the relevant person must, in starting the appeal, give the 31
Land Court a copy of the Minister's reasons; and 32
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 5 Grants of leases to satisfy lease entitlements
[s 34]
(d) the Minister must advise the reference entity for the 1
lease entitlement the subject of the application of the 2
starting of the appeal and give the reference entity a 3
copy of the reasons mentioned in paragraph (a). 4
(2) The appeal must be started within 28 days after the relevant 5
person is given advice of the decision. 6
(3) In deciding the appeal, the court may order the Minister to 7
change the statement of reasons (obstacles) in the way the 8
court considers appropriate. 9
(4) If the court orders the Minister to change the statement of 10
reasons (obstacles), the Minister must give a copy of the 11
changed statement of reasons (obstacles) to-- 12
(a) the relevant person; and 13
(b) the reference entity for the lease entitlement. 14
(5) The parties to the appeal are-- 15
(a) the relevant person; and 16
(b) the Minister; and 17
(c) the reference entity for the lease entitlement. 18
Part 5 Grants of leases to satisfy 19
lease entitlements 20
Division 1 Introduction 21
34 Operation of pt 5 22
(1) This part establishes a process for satisfying a lease 23
entitlement by the granting of a lease. 24
(2) If there are no practical obstacles identified, the Minister may 25
grant a lease to satisfy the lease entitlement under division 2. 26
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 5 Grants of leases to satisfy lease entitlements
[s 35]
(3) If a person applies to the Minister to proceed immediately 1
with the grant of a lease and the application is granted under 2
division 3, the Minister may grant a lease to satisfy the lease 3
entitlement under division 2. 4
(4) If there are practical obstacles identified, the Minister may 5
grant a lease to satisfy the lease entitlement under division 4. 6
Division 2 Granting lease to satisfy lease 7
entitlement if no obstacles to grant 8
35 Minister may grant lease 9
(1) The Minister may grant a lease in a trust area if-- 10
(a) the lease is to satisfy a lease entitlement included in a 11
lease entitlement notice currently in force; and 12
(b) the lease is granted to-- 13
(i) the holder of the lease entitlement as identified in 14
the lease entitlement notice whether or not the 15
holder is deceased; or 16
(ii) if the holder is deceased, an appropriate person 17
having regard to the laws of succession; and 18
(c) either-- 19
(i) a statement of reasons (obstacles) stating that there 20
are no practical obstacles to granting the lease was 21
given to the reference entity for the lease 22
entitlement as required under part 4; or 23
(ii) after the Minister has complied with the 24
requirements of division 4, subdivision 2, the 25
Minister considers that there are no practical 26
obstacles to granting the lease. 27
(2) The lease must be-- 28
(a) if the lease entitlement relates to land of not more than 29
1ha--a lease in perpetuity for a purpose decided by the 30
Minister; or 31
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 5 Grants of leases to satisfy lease entitlements
[s 36]
(b) otherwise--a lease for a term decided by the Minister 1
for a purpose decided by the Minister. 2
(3) In deciding a purpose or a term under subsection (2), the 3
Minister must have regard to the lease entitlement notice. 4
(4) Before granting a lease under this division, the Minister must 5
notify the person to whom the Minister intends to grant the 6
lease to satisfy the lease entitlement. 7
(5) If the proposed grantee is deceased, the notice under 8
subsection (4), must, to the extent practicable, be given to 9
interested persons in the estate of the deceased holder. 10
(6) The granting of the lease satisfies the lease entitlement and the 11
lease entitlement notice ceases to be a lease entitlement notice 12
currently in force. 13
(7) The chief executive may publish on the department's website 14
that the lease entitlement notice has been satisfied by the grant 15
of a lease. 16
Division 3 Application to proceed immediately 17
with the grant of a lease 18
36 Application to proceed immediately with the grant of a 19
lease 20
(1) This section applies if-- 21
(a) a person considers that the Minister may, under section 22
35, grant a lease to satisfy a lease entitlement included 23
in a lease entitlement notice currently in force; and 24
(b) the Minister has not yet taken action to grant the lease; 25
and; 26
(c) there is currently no appeal before the Land Court under 27
section 33 in relation to the lease entitlement; and 28
(d) the person is a proper applicant for the lease. 29
(2) The person may apply to the Minister to proceed immediately 30
with the grant of the lease. 31
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 5 Grants of leases to satisfy lease entitlements
[s 37]
(3) If there is no statement of reasons (obstacles) currently in 1
effect for the lease entitlement, the Minister must, within 28 2
days after the Minister receives the application, take action 3
under part 4 for the preparation of a statement of reasons 4
(obstacles). 5
(4) If there is a statement of reasons (obstacles) currently in effect 6
for the lease entitlement, the Minister must give the applicant 7
a copy of the statement. 8
(5) If there is a statement of reasons (obstacles) currently in effect 9
for the lease entitlement and the statement does not identify 10
practical obstacles, the Minister must-- 11
(a) advise the applicant that the Minister intends to grant 12
the lease; and 13
(b) grant the lease as soon as practicable under section 35. 14
37 Consideration of application 15
(1) This section applies to the Minister's consideration of an 16
application under section 36. 17
(2) The Minister may ask the applicant for further information to 18
support the application within a stated reasonable period. 19
(3) The Minister must decide the application, and advise the 20
applicant of the decision, within-- 21
(a) 28 days after the application was made; or 22
(b) 28 days after the application was made together with 23
any time the Minister reasonably requires to deal with 24
additional information given by the applicant; or 25
(c) if action is required to be taken for the preparation of a 26
statement of reasons (obstacles) for the lease 27
entitlement, 28 days after-- 28
(i) the period for appealing against the correctness of 29
the statement ends; or 30
(ii) if the statement is appealed--the finalisation of the 31
appeal. 32
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 5 Grants of leases to satisfy lease entitlements
[s 38]
(4) The Minister may decide the application if the applicant does 1
not provide additional information within the stated period. 2
38 Refusal to proceed immediately with grant of lease 3
(1) If the Minister refuses an application to proceed immediately 4
with the grant of a lease under this division-- 5
(a) the notice to the applicant advising of the decision must 6
include the Minister's reasons for the decision to refuse; 7
and 8
(b) the applicant may appeal to the Land Court against the 9
decision; and 10
(c) the applicant must, in starting the appeal, give the Land 11
Court a copy of the Minister's reasons; and 12
(d) the Minister must advise the reference entity for the 13
lease entitlement the subject of the application of the 14
starting of the appeal and give the reference entity a 15
copy of the reasons mentioned in paragraph (a). 16
(2) The appeal must be started within 28 days after the applicant 17
is given notice of the decision. 18
(3) If the appeal is successful, the Minister must proceed to grant 19
the lease-- 20
(a) in compliance with the order of the Land Court; and 21
(b) subject to paragraph (a)--under section 35. 22
(4) The parties to the appeal are-- 23
(a) the applicant; and 24
(b) the Minister; and 25
(c) the reference entity for the lease entitlement. 26
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 5 Grants of leases to satisfy lease entitlements
[s 39]
Division 4 Granting lease to satisfy lease 1
entitlement if obstacles to grant 2
Subdivision 1 Deferred grants generally 3
39 Minister may make deferred grant of lease 4
(1) The Minister may under this division make a grant (a deferred 5
grant) of a lease in a trust area to satisfy a lease entitlement 6
included in a lease entitlement notice currently in force if, 7
because of practical obstacles stated in a statement of reasons 8
(obstacles), the Minister can not make a grant under section 9
35 to satisfy the lease entitlement. 10
(2) The granting of the lease satisfies the lease entitlement and the 11
lease entitlement notice ceases to be a lease entitlement notice 12
currently in force. 13
(3) Other provisions of this division state requirements for 14
making a deferred grant. 15
Subdivision 2 Consultation or agreement before 16
deferred grant 17
40 Purpose of sdiv 2 18
This subdivision states requirements that must be complied 19
with before the Minister may make a deferred grant to satisfy 20
a lease entitlement included in a lease entitlement notice 21
currently in force. 22
41 Minister may rely on advice 23
The Minister may rely on advice from a community reference 24
panel about its consultation with a person to satisfy the 25
Minister's obligations under this subdivision to consult with 26
the person or seek the person's agreement. 27
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 5 Grants of leases to satisfy lease entitlements
[s 42]
42 Reference to community reference panel 1
(1) This section applies if there is a community reference panel 2
for the trust area for the lease entitlement. 3
(2) The Minister must refer to the panel, for its consideration, the 4
statement of reasons (obstacles) about satisfying the lease 5
entitlement. 6
(3) The panel may consult with any person and give the Minister 7
any advice or recommendation it considers appropriate about 8
satisfying the lease entitlement, having regard to the statement 9
of reasons (obstacles). 10
(4) The Minister must, to the extent necessary for the giving of 11
advice or a recommendation under subsection (3), give the 12
panel access to copies of information and documents used in 13
preparing the lease entitlement notice for the lease 14
entitlement. 15
43 Persons to be consulted 16
(1) This section applies if the Minister is satisfied that there is a 17
person who ought to be consulted about, or whose agreement 18
is required, to the grant of a lease to satisfy the lease 19
entitlement. 20
(2) Without limiting subsection (1), a person who ought to be 21
consulted includes the holder of the lease entitlement or, if the 22
holder is deceased, any interested person in the estate of the 23
deceased holder. 24
(3) The Minister must consult with the person, or seek the 25
person's agreement, before making the deferred grant. 26
44 Location of lease 27
(1) This section applies if the statement of reasons (obstacles) 28
identifies as an obstacle that the location of the lease 29
entitlement land is unclear. 30
(2) The Minister must seek to identify clear boundaries of a lease 31
to be granted to satisfy the lease entitlement, and seek the 32
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 5 Grants of leases to satisfy lease entitlements
[s 45]
agreement to the identified boundaries of any other person 1
whose agreement is needed for the grant of a lease with those 2
boundaries. 3
45 Ownership of improvements 4
(1) This section applies if the statement of reasons (obstacles) 5
identifies as an obstacle that the ownership of an improvement 6
on the lease entitlement land needs to be resolved. 7
(2) The Minister must consult with any person having an interest 8
in the improvement and seek to ensure that the grant of a lease 9
to satisfy the lease entitlement, and that affects an interest in 10
the improvement, happens with the agreement of any person 11
having an interest in the improvement. 12
(3) An agreement under subsection (2) may be an agreement to 13
transfer an improvement that is a social housing dwelling. 14
Note for subsection (3)-- 15
Section 62 states requirements for deciding the value of the social 16
housing dwelling for the transfer. 17
Subdivision 3 Agreed deferred grant 18
46 Minister may make agreed deferred grant 19
(1) The Minister may make a deferred grant of a lease (an agreed 20
deferred grant) in a trust area if-- 21
(a) the lease is to satisfy a lease entitlement included in a 22
lease entitlement notice currently in force; and 23
(b) the Minister has complied with the requirements of 24
subdivision 2; and 25
(c) the Minister considers all agreements necessary to 26
support the making of the grant (the relevant 27
agreements) have been entered into. 28
(2) The Minister may grant the lease subject to conditions that are 29
consistent with the relevant agreements. 30
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 5 Grants of leases to satisfy lease entitlements
[s 47]
(3) Before granting a lease, the Minister must-- 1
(a) prepare a statement explaining the proposed approach to 2
satisfying the lease entitlement; and 3
(b) notify the person to whom the Minister intends to grant 4
the lease to satisfy the lease entitlement and give the 5
person a copy of the statement mentioned in paragraph 6
(a). 7
(4) The granting of the lease satisfies the lease entitlement and the 8
lease entitlement notice ceases to be a lease entitlement notice 9
currently in force. 10
(5) The chief executive may publish on the department's website 11
that the lease entitlement notice has been satisfied by the grant 12
of a lease. 13
Subdivision 4 Contested deferred grant 14
47 Application to Land Court in absence of agreement 15
(1) The Minister may apply to the Land Court to make a deferred 16
grant of a lease (a contested deferred grant) to satisfy a lease 17
entitlement if the Minister considers that not all agreements 18
necessary to support the making of the grant have been 19
entered into. 20
(2) The application must include the following-- 21
(a) details of the lease entitlement; 22
(b) details of the proposed contested deferred grant, 23
including-- 24
(i) the proposed grantee of the lease; and 25
(ii) the proposed boundaries of the lease; 26
(c) a copy of the statement of reasons (obstacles) currently 27
in effect for the lease entitlement; 28
(d) a record of the consultation about the lease entitlement 29
that took place under this division; 30
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 5 Grants of leases to satisfy lease entitlements
[s 48]
(e) copies of any agreements that have been entered into to 1
support the making of the grant; 2
(f) details about proposed conditions that are-- 3
(i) to be complied with before the lease is granted; or 4
(ii) to be imposed on the lease when it is granted; 5
(g) a statement of reasons (statement of reasons (contested 6
deferred grant)) explaining the proposed approach to 7
satisfying the lease entitlement. 8
(3) The statement of reasons (contested deferred grant) must 9
include details of the persons whose agreement has not been 10
obtained, but would be required, for the making of the 11
proposed grant as an agreed deferred grant rather than as a 12
contested deferred grant. 13
48 Decision of Land Court for contested deferred grant 14
(1) The Land Court must decide the application. 15
(2) In deciding the application, the court must decide-- 16
(a) whether the requirements of this division have been 17
complied with; and 18
(b) whether it is reasonable that the application be granted. 19
(3) The court may-- 20
(a) grant the application, whether or not subject to 21
conditions; or 22
(b) refuse the application; or 23
(c) make any order the court considers appropriate. 24
(4) The parties to the proceeding before the Land Court are-- 25
(a) the Minister; and 26
(b) the proposed grantee under the proposed contested 27
deferred grant; and 28
(c) each party to an agreement supporting the making of the 29
proposed contested deferred grant; and 30
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 5 Grants of leases to satisfy lease entitlements
[s 49]
(d) all persons identified by the Minster in the statement of 1
reasons (contested deferred grant) as persons whose 2
agreement has not been obtained; and 3
(e) the reference entity for the lease entitlement. 4
(5) The Minister must make a contested deferred grant as decided 5
by the Land Court. 6
(6) The granting of the lease satisfies the lease entitlement and the 7
lease entitlement notice ceases to be a lease entitlement notice 8
currently in force. 9
(7) The chief executive may publish on the department's website 10
that the lease entitlement notice has been satisfied by the grant 11
of a lease. 12
49 Compensation for grantee in circumstances of contested 13
deferred grant 14
(1) If an order of the Land Court, in a decision on an application 15
for a contested deferred grant, provides for the granting of a 16
lease over land that is to any extent different in area or 17
location from the lease entitlement land, and the contested 18
deferred grant will operate to the detriment of the proposed 19
grantee, the proposed grantee (the applicant) may apply to the 20
Land Court for an order that the State pay an amount of 21
compensation. 22
(2) The Land Court must decide the application. 23
(3) The amount of compensation the court may order must be 24
only the amount reasonably necessary to compensate the 25
applicant for-- 26
(a) the extent to which the value of the applicant's interest 27
in land or improvements has been decreased without a 28
compensating increase in the value of the applicant's 29
interest in land or improvements; and 30
(b) expenses to be incurred by the applicant in taking 31
practical measures needed because of the contested 32
deferred grant. 33
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 5 Grants of leases to satisfy lease entitlements
[s 50]
(4) The application must be made within 28 days, or a longer 1
period approved by the court, after the court decides the 2
application to make the contested deferred grant. 3
(5) The parties to the proceeding before the Land Court are-- 4
(a) the Minister; and 5
(b) the proposed grantee under the proposed contested 6
deferred grant. 7
Division 5 New Act granted leases generally 8
50 New Act granted leases 9
(1) The lessor of a new Act granted lease is-- 10
(a) the trustee of the trust area; or 11
(b) if the lease land is also the subject of a townsite lease 12
under ALA or TSILA--the lessee under the townsite 13
lease. 14
(2) A new Act granted lease is subject to-- 15
(a) conditions recorded on the instrument of lease on the 16
granting of the lease; and 17
(b) the conditions provided for under part 8; and 18
(c) the provisions of ALA or TSILA as provided for under 19
part 9. 20
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 6 Boundary relocations for particular 1985 Act granted leases
[s 51]
Part 6 Boundary relocations for 1
particular 1985 Act granted 2
leases 3
Division 1 Introduction 4
51 Operation of pt 6 5
This part establishes a process for the Minister to-- 6
(a) identify boundary problems affecting some 1985 Act 7
granted leases; and 8
(b) obtain advice from a community reference panel or 9
reference entity about resolving the boundary problems; 10
and 11
(c) relocate the boundaries of 1985 Act granted leases in 12
compliance with a decision of the Land Court under 13
division 3 or 4. 14
Division 2 Consultation about boundary 15
relocations 16
52 Consultation about boundaries of lease 17
(1) This section applies if the Minister considers that it is not 18
practicable for a 1985 Act granted lease to continue to have its 19
boundaries in their current location, having regard to 20
circumstances that have arisen since the lease was originally 21
granted. 22
(2) The Minister must advise the lessee and the reference entity 23
for the lease of the reasons the Minister considers it is not 24
practicable for the 1985 Act granted lease to continue to have 25
its boundaries in their current location. 26
(3) The Minister must consult with-- 27
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 6 Boundary relocations for particular 1985 Act granted leases
[s 53]
(a) the lessee; and 1
(b) the reference entity; and 2
(c) any person who, in the Minister's opinion, is required to 3
agree to a relocation of the lease boundaries. 4
(4) If there is a community reference panel for the trust area 5
where the lease is located, the Minister must refer the 6
boundaries of the lease to the panel. 7
(5) The community reference panel may-- 8
(a) consult with the lessee; and 9
(b) consult with any other person it considers appropriate; 10
and 11
(c) give the Minister any advice or recommendation it 12
considers appropriate. 13
(6) The Minister may rely on advice from the panel about its 14
consultation with a person to satisfy the Minister's obligations 15
under this section to consult with the person. 16
Division 3 Agreed boundary relocation 17
53 Application to Land Court in case of agreement 18
(1) The Minister may apply to the Land Court for the relocation 19
of the boundaries of a 1985 Act granted lease (an agreed 20
boundary relocation) if the Minister considers all agreements 21
necessary to support the boundary relocation have been 22
entered into. 23
(2) The application must include the following-- 24
(a) details of the lease as currently granted; 25
(b) details of the proposed agreed boundary relocation, 26
including-- 27
(i) the boundaries of the lease as currently located; 28
and 29
(ii) the proposed boundaries of the lease; 30
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 6 Boundary relocations for particular 1985 Act granted leases
[s 54]
(c) a record of the consultation that took place under this 1
part about the boundaries of the lease; 2
(d) copies of all agreements that have been entered into, and 3
that are the agreements necessary, to support the 4
boundary relocation; 5
(e) details about conditions that are to be complied with 6
before or after the boundary relocation; 7
(f) a statement of reasons explaining the proposed approach 8
to relocating the lease boundaries by agreement. 9
54 Decision of Land Court for agreed boundary relocation 10
(1) The Land Court must decide the application. 11
(2) In deciding the application, the court must decide whether-- 12
(a) the requirements of this part have been complied with; 13
and 14
(b) all agreements necessary to support the boundary 15
relocation have been entered into. 16
(3) The court may-- 17
(a) grant the application; or 18
(b) refuse the application; or 19
(c) refer the application back to the Minister with any order 20
the court considers appropriate. 21
(4) The parties to the proceeding before the Land Court are-- 22
(a) the Minister; and 23
(b) the lessee of the lease; and 24
(c) the lessor of the lease; and 25
(d) each party to an agreement supporting the proposed 26
agreed boundary relocation. 27
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 6 Boundary relocations for particular 1985 Act granted leases
[s 55]
Division 4 Contested boundary relocation 1
55 Application to Land Court in absence of agreement 2
(1) The Minister may apply to the Land Court for the relocation 3
of the boundaries of a 1985 Act granted lease (a contested 4
boundary relocation) if the Minister considers that not all 5
agreements necessary to support the boundary relocation have 6
been entered into. 7
(2) The application must include the following-- 8
(a) details of the lease as currently granted; 9
(b) details of the proposed contested boundary relocation, 10
including-- 11
(i) the boundaries of the lease as currently located; 12
and 13
(ii) the proposed boundaries of the lease; 14
(c) a record of the consultation that took place under this 15
part about the boundaries of the lease; 16
(d) copies of any agreements that have been entered into to 17
support the boundary relocation; 18
(e) details about conditions that are to be complied with 19
before or after the boundary relocation; 20
(f) a statement of reasons (statement of reasons (contested 21
boundary relocation)) explaining the proposed 22
approach to relocating the lease boundaries. 23
(3) The statement of reasons (contested boundary relocation) 24
must include details of the persons whose agreement has not 25
been obtained, but would be required, to relocate the 26
boundaries as proposed as an agreed boundary relocation 27
rather than as a contested boundary relocation. 28
56 Decision of Land Court for contested boundary 29
relocation 30
(1) The Land Court must decide the application. 31
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 6 Boundary relocations for particular 1985 Act granted leases
[s 57]
(2) In deciding the application, the court must decide whether-- 1
(a) the requirements of this part have been complied with; 2
and 3
(b) it is reasonable that the application be granted. 4
(3) The court may-- 5
(a) grant the application, whether or not subject to 6
conditions; or 7
(b) refuse the application; or 8
(c) make any order the court considers appropriate. 9
(4) The parties to the proceeding before the Land Court are-- 10
(a) the Minister; and 11
(b) the lessee of the lease; and 12
(c) the lessor of the lease; and 13
(d) each party to an agreement supporting the proposed 14
contested boundary relocation; and 15
(e) all persons identified by the Minister in the statement of 16
reasons (contested boundary relocation) as persons 17
whose agreement has not been obtained. 18
57 Compensation for lessee in circumstances of contested 19
boundary relocation 20
(1) If an order of the Land Court, in a decision on an application 21
for a contested boundary relocation, provides for a boundary 22
relocation that will operate to the detriment of the lessee of the 23
1985 Act granted lease, the lessee may apply to the Land 24
Court for an order that the State pay an amount of 25
compensation. 26
(2) The Land Court must decide the application. 27
(3) The amount of compensation the court may order must be 28
only the amount reasonably necessary to compensate the 29
applicant for-- 30
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 6 Boundary relocations for particular 1985 Act granted leases
[s 58]
(a) the extent to which the value of the lessee's interest in 1
land or improvements has been decreased without a 2
compensating increase in the value of the lessee's 3
interest in land or improvements; and 4
(b) expenses to be incurred by the lessee in taking practical 5
measures needed because of the contested boundary 6
relocation. 7
(4) The application must be made within 28 days, or a longer 8
period approved by the court, after the court decides the 9
application to make the contested boundary relocation. 10
(5) The parties to the proceeding before the Land Court are-- 11
(a) the Minister; and 12
(b) the lessee. 13
Division 5 Recording boundary relocation 14
58 Recording of boundary relocation 15
(1) The Minister must ensure that a plan of survey, capable of 16
registration in a register kept under the Land Act or Land Title 17
Act, is prepared and registered for the relocation of the 18
boundaries of the lease as provided for in the order of the 19
Land Court on an application under section 53 or 55. 20
(2) The chief executive, or, as appropriate, the registrar, must 21
make any necessary change in the appropriate register to 22
record-- 23
(a) the relocation of the boundaries of the lease; and 24
(b) the amendment of any other interest as provided for in 25
the order of the Land Court under section 54 or 56. 26
(3) On the registration of the plan of survey-- 27
(a) the lessee's interest in any land that is not included 28
within the relocated boundaries ceases; and 29
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 7 Ownership of structural improvements
[s 59]
(b) the lease land for the 1985 Act granted lease is the land 1
within the relocated boundaries. 2
Part 7 Ownership of structural 3
improvements 4
59 Ownership of improvements continues 5
(1) This section applies to a structural improvement that is 6
located on land that-- 7
(a) on the commencement of the section, is lease land for a 8
1985 Act granted lease; or 9
(b) immediately before the commencement of the section, 10
was the subject of an approval, under the 1985 Land 11
Holding Act, capable of forming the basis of a lease 12
entitlement. 13
(2) The ownership of the improvement is not affected by the 14
repeal of the 1985 Land Holding Act or the commencement of 15
this Act. 16
60 Agreement or arrangement for 1985 Land Holding Act, s 17
15 18
(1) This section applies if, immediately before the 19
commencement of the section, an agreement or arrangement 20
for the purposes of the 1985 Land Holding Act, section 15(1) 21
existed for the purchase of an improvement. 22
(2) For subsection (1), it does not matter-- 23
(a) whether the price and the terms and conditions of the 24
purchase were approved by the Governor in Council 25
under the 1985 Land Holding Act, section 15(1); or 26
(b) whether the improvement is located on lease land for a 27
1985 Act granted lease or on lease entitlement land. 28
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 7 Ownership of structural improvements
[s 61]
(3) The agreement or arrangement continues in force. 1
61 Gazette notice for completed agreement or arrangement 2
(1) The housing chief executive may by gazette notice declare 3
that-- 4
(a) the purchaser under an agreement or arrangement 5
mentioned in section 60 has no obligation to pay any 6
further amount under the agreement or arrangement; 7
and 8
(b) the agreement or arrangement may be taken to be 9
completed; and 10
(c) the purchaser is the owner of the improvement stated in 11
the notice. 12
(2) The housing chief executive may publish a gazette notice 13
under subsection (1) only with the agreement of each of the 14
following-- 15
(a) the purchaser under the agreement or arrangement, or, if 16
the purchaser is deceased, some or all of the persons 17
who are interested persons in the estate of the deceased 18
purchaser; 19
(b) the owner of the improvement the subject of the notice. 20
(3) The declaration has effect on the publication of the gazette 21
notice. 22
(4) It is not necessary that the improvement the subject of the 23
gazette notice be the same as the improvement the subject of 24
the agreement or arrangement mentioned in section 60. 25
62 Use of valuation methodology for social housing dwelling 26
(1) This section applies if-- 27
(a) a social housing dwelling is located on the lease land for 28
a 1985 Act granted lease, a new Act granted lease or a 29
proposed new Act granted lease; and 30
(b) the owner of the dwelling is-- 31
Page 53
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 7 Ownership of structural improvements
[s 62]
(i) the State; or 1
(ii) the trustee of the trust area, or the part of the trust 2
area, where the dwelling is located; or 3
(iii) if the lease land is also the subject of a townsite 4
lease under ALA or TSILA--the lessee under the 5
townsite lease. 6
(2) The owner of the dwelling may transfer the dwelling to a 7
person who is or is to become the lessee under the lease. 8
(3) The value of the dwelling for the transfer is-- 9
(a) if in the trust area there is in operation a valuation 10
methodology agreed under ALA, section 143(6) or 11
TSILA, section 108(6)--the value decided by using the 12
methodology; or 13
(b) otherwise--the value decided by using the valuation 14
methodology decided by the housing chief executive. 15
(4) Subsection (3) does not apply if the value is decided by the 16
Land Court in deciding an application for-- 17
(a) a contested deferred grant; or 18
(b) an agreed boundary relocation; or 19
(c) a contested boundary relocation. 20
Page 54
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 8 Conditions and requirements applying to leases
[s 63]
Part 8 Conditions and requirements 1
applying to leases 2
Division 1 Conditions and requirements 3
applying to leases other than term 4
leases 5
63 Operation of div 1 6
This division states standard conditions and other 7
requirements that apply to 1985 Act granted leases and new 8
Act granted leases, other than leases granted for a term of 9
years. 10
64 Dealings 11
(1) A lease may be transferred only to-- 12
(a) an Aborigine or Torres Strait Islander; or 13
(b) a person who is not an Aborigine or Torres Strait 14
Islander if the person is the spouse, or former spouse, of 15
an Aborigine or Torres Strait Islander or of an Aborigine 16
or Torres Strait Islander who is deceased. 17
(2) A lease may be transferred only with the lessor's prior written 18
consent. 19
(3) An interest under a lease, other than a mortgage of the lease, 20
but including a sublease, may be created only with the lessor's 21
prior written consent. 22
(4) The lessor must not unreasonably withhold consent under 23
subsection (2) or (3). 24
(5) A lease may be mortgaged without the consent of the Minister 25
or the lessor. 26
Page 55
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 8 Conditions and requirements applying to leases
[s 65]
65 Registration of dealings 1
(1) All leases and any sublease of a lease, and any transfer, 2
amendment or surrender of a lease or sublease, must be 3
registered in the appropriate register. 4
(2) Despite the Land Title Act, section 65(2), an instrument of 5
lease for a new Act granted lease, or a sublease of a 1985 Act 6
granted lease or new Act granted lease, must include a plan of 7
survey identifying the land subject to the lease or sublease. 8
(3) Subsection (2) does not apply to a sublease entered into only 9
for an area completely within a building. 10
66 Lease for residential purposes 11
(1) This section applies if, under a lease, land must be used 12
primarily for residential purposes. 13
(2) If, on the commencement of this section, there is no private 14
residential premises on the land, the lessee must ensure a 15
private residential premises is built on the land-- 16
(a) for a 1985 Act granted lease--within 8 years after the 17
commencement of this section; or 18
(b) for a new Act granted lease--within 8 years after the 19
lease is granted. 20
(3) The annual rental for the lease is the amount, of not more than 21
$1, decided by the lessor. 22
67 Subleases 23
(1) A sublease of a lease may be transferred only with the prior 24
written consent of the lessor and lessee of the lease. 25
(2) The lessor and lessee must not unreasonably withhold consent 26
under subsection (1). 27
(3) A sublease of a lease may be amended only with the prior 28
written consent of the lessor of the lease. 29
(4) The lessor must not unreasonably withhold consent under 30
subsection (3). 31
Page 56
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 8 Conditions and requirements applying to leases
[s 68]
(5) An amendment of a sublease must not-- 1
(a) increase or decrease the area subleased; or 2
(b) add or remove a party to the sublease; or 3
(c) be lodged for registration after the sublease's term has 4
ended. 5
(6) A sublease of a lease executed after the registration of a 6
mortgage over the lease is valid as against the mortgagee only 7
if the mortgagee agreed to the sublease before its registration. 8
(7) An amendment of a sublease of a lease executed after the 9
registration of a mortgage over the lease is valid as against the 10
mortgagee only if the mortgagee agreed to the amendment 11
before the registration of the document of amendment. 12
(8) An obligation applying to the lessee under a lease continues to 13
apply to the lessee even if the lease is subleased. 14
(9) Subsection (8) does not stop the sublessee from agreeing, 15
under the sublease, to fulfil the obligation for the lessor. 16
Example for subsections (8) and (9)-- 17
A lessee's obligation to ensure a private residential premises is built on 18
lease land continues as the lessee's obligation. However, the lessee and a 19
sublessee may agree that the sublessee will build the premises. 20
68 Surrenders 21
(1) The lessee of a lease may surrender all or part of the lease 22
only if each of the following has given written agreement to 23
the surrender-- 24
(a) the mortgagee of a registered mortgage of the lease or of 25
an interest under the lease; 26
(b) the holder of a sublease under the lease. 27
(2) The lessee must notify the holder of a registered interest under 28
the lease of the lessee's intention to surrender the lease at least 29
28 days before the surrender takes effect. 30
(3) The surrender of a lease may be on the basis of the payment of 31
an agreed consideration for the surrender. 32
Page 57
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 8 Conditions and requirements applying to leases
[s 69]
Division 2 Term leases 1
69 Entitlement to apply for lease under ALA or TSILA 2
(1) Subsections (2) and (3) apply to a 1985 Act granted lease or a 3
new Act granted lease, granted for a term of years, if the lease 4
is-- 5
(a) over Aboriginal trust land in a trust area; or 6
(b) over transferred land under ALA in a trust area; or 7
(c) in force as a sublease of a townsite lease under ALA in a 8
trust area. 9
(2) The holder of the lease may, before the term of the lease has 10
expired-- 11
(a) if subsection (1)(a) or (b) applies--apply to the trustee 12
of the trust area to be granted a lease under ALA over 13
the lease land for the 1985 Act granted lease or new Act 14
granted lease; or 15
(b) if subsection (1)(c) applies--apply to the lessee of the 16
townsite lease to be granted a townsite sublease under 17
ALA over the lease land for the 1985 Act granted lease 18
or new Act granted lease. 19
(3) The application may be considered, and a lease or townsite 20
sublease may be granted, under ALA. 21
(4) Subsections (5) and (6) apply to a 1985 Act granted lease or a 22
new Act granted lease, granted for a term of years, if the lease 23
is-- 24
(a) over Torres Strait Islander trust land in a trust area; or 25
(b) over transferred land under TSILA in a trust area; or 26
(c) in force as a sublease of a townsite lease under TSILA in 27
a trust area. 28
(5) The holder of the lease may, before the term of the lease has 29
expired-- 30
Page 58
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 9 Application of provisions of ALA or TSILA
[s 70]
(a) if subsection (4)(a) or (b) applies--apply to the trustee 1
of the trust area to be granted a lease under TSILA over 2
the lease land for the 1985 Act granted lease or new Act 3
granted lease; or 4
(b) if subsection (4)(c) applies--apply to the lessee of the 5
townsite lease to be granted a townsite sublease under 6
TSILA over the lease land for the 1985 Act granted 7
lease or new Act granted lease. 8
(6) The application may be considered, and a lease or townsite 9
sublease may be granted, under TSILA. 10
Part 9 Application of provisions of 11
ALA or TSILA 12
Division 1 Applying ALA or TSILA 13
70 ALA provisions 14
(1) This section and division 2 apply to a 1985 Act granted lease 15
or a new Act granted lease, other than a lease granted for a 16
term of years, if the lease is-- 17
(a) over Aboriginal trust land; or 18
(b) over transferred land under ALA; or 19
(c) in force as a sublease of a townsite lease under ALA. 20
(2) ALA applies to the lease as provided for in division 2. 21
(3) Despite subsection (2), a provision of ALA does not apply to 22
the lease if it is in substance equivalent to, or inconsistent 23
with, a provision of part 8 of this Act. 24
(4) If a provision of ALA is changed under division 2, the 25
provision applies to the lease in the way changed. 26
Page 59
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 9 Application of provisions of ALA or TSILA
[s 71]
71 TSILA provisions 1
(1) This section and division 3 apply to a 1985 Act granted lease 2
or a new Act granted lease, other than a lease granted for a 3
term of years, if the lease is-- 4
(a) over Torres Strait Islander trust land; or 5
(b) over transferred land under TSILA; or 6
(c) in force as a sublease of a townsite lease under TSILA. 7
(2) TSILA applies to the lease as provided for in division 3. 8
(3) Despite subsection (2), a provision of TSILA does not apply 9
to the lease if it is in substance equivalent to, or inconsistent 10
with, a provision of part 8 of this Act. 11
(4) If a provision of TSILA is changed under division 3, the 12
provision applies to the lease in the way changed. 13
Division 2 Applying ALA 14
Subdivision 1 All land 15
72 Non-application of ALA, s 98 (Requirement for 16
consultation) 17
To remove any doubt, it is declared that ALA, section 98 does 18
not apply to a dealing affecting, including a dealing creating 19
an interest in, a lease to which this division applies. 20
73 Applying ALA, pt 10, div 6 (Forfeiture and renewal of 21
residential leases) 22
(1) ALA, part 10, division 6 (other than part 10, division 6, 23
subdivision 3) applies to a lease to which this division applies 24
as if the lease were a residential lease under that division. 25
(2) Subsection (1) applies to the lease even if it is not granted for 26
residential purposes. 27
Page 60
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 9 Application of provisions of ALA or TSILA
[s 74]
(3) For applying ALA, section 149, a relevant condition is any 1
condition of the lease as provided for in part 8 of this Act if 2
the lessor reasonably considers a breach of the condition is of 3
a serious nature and warrants forfeiture of the lease. 4
(4) For applying ALA, sections 150(2) and 152(1)(a), written 5
notice must be given additionally to any person holding a 6
sublease over the lease. 7
(5) ALA, part 10, division 6, subdivision 4 must be applied not 8
only to improvements of the lessee but also to the holder, and 9
improvements of the holder, of any sublease over the lease, 10
and for that purpose, a reference in the subdivision to the lease 11
land is a reference to the land the subject of the sublease. 12
(6) Also, for applying ALA, part 10, division 6, subdivision 4, 13
references to renewal of a lease may be ignored. 14
(7) For ALA, section 162(3), the value of the lease land is the 15
amount decided by the chief executive under this Act. 16
Subdivision 2 Aboriginal land 17
74 Applying ALA, pt 14 (Provisions about mortgages of 18
leases over Aboriginal land) 19
(1) ALA, part 14 applies to a lease to which this division applies 20
if it is over Aboriginal land and was granted after the land 21
became Aboriginal land. 22
(2) For applying ALA, part 14, the lease is taken to be-- 23
(a) if the lease is in force as a sublease of a townsite lease 24
under ALA--a townsite sublease as mentioned in ALA, 25
section 180, definition lease, paragraph (b); or 26
(b) otherwise--a standard lease as mentioned in ALA, 27
section 180, definition lease, paragraph (a). 28
(3) For applying ALA, section 182(7), the reference to a person 29
who would be entitled to a grant of the lease is taken to be a 30
reference to a person to whom, under this Act, the lease may 31
be transferred. 32
Page 61
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 9 Application of provisions of ALA or TSILA
[s 75]
Subdivision 3 Aboriginal trust land 1
75 Definition for sdiv 3 2
In this subdivision-- 3
relevant lease means a lease to which this division applies, 4
but does not include a lease that, when it was granted, was 5
granted over transferred land under ALA. 6
76 Applying ALA, s 185 (Relationship with Land Act) 7
ALA, section 185 applies for establishing-- 8
(a) the relationship between the Land Act and this Act in 9
relation to Aboriginal trust land and a relevant lease; and 10
(b) the status under the Land Act of a relevant lease; 11
in the same way it applies for establishing-- 12
(c) the relationship between the Land Act and ALA in 13
relation to Aboriginal trust land and a trustee 14
(Aboriginal) lease; and 15
(d) the status under the Land Act of a trustee (Aboriginal) 16
lease. 17
77 Applying ALA, s 187 (Amending trustee (Aboriginal) 18
lease) 19
ALA, section 187 applies to a relevant lease as if the lease 20
were a registered trustee (Aboriginal) lease. 21
78 Applying ALA, s 188 (Mortgage of trustee (Aboriginal) 22
lease) 23
ALA, section 188 applies to a relevant lease as if-- 24
(a) the lease were a trustee (Aboriginal) lease; and 25
(b) the reference in ALA, section 188(2)(a)(iii) to a person 26
entitled under ALA to a grant of a lease were a reference 27
Page 62
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 9 Application of provisions of ALA or TSILA
[s 79]
to a person to whom, under this Act, the lease may be 1
transferred. 2
Division 3 Applying TSILA 3
Subdivision 1 All land 4
79 Non-application of TSILA, s 65 (Requirement for 5
consultation) 6
To remove any doubt, it is declared that TSILA, section 65 7
does not apply to a dealing affecting, including a dealing 8
creating an interest in, a lease to which this division applies. 9
80 Applying TSILA, pt 8, div 6 (Forfeiture and renewal of 10
leases for private residential purposes) 11
(1) TSILA, part 8, division 6 (other than part 8, division 6, 12
subdivision 3) applies to a lease to which this division applies 13
as if the lease were a residential lease under that division. 14
(2) Subsection (1) applies to the lease even if it is not granted for 15
residential purposes. 16
(3) For applying TSILA, section 114, a relevant condition is any 17
condition of the lease as provided for in part 8 of this Act if 18
the lessor reasonably considers a breach of the condition is of 19
a serious nature and warrants forfeiture of the lease. 20
(4) For applying TSILA, sections 115(2) and 117(1)(a), written 21
notice must be given additionally to any person holding a 22
sublease over the lease. 23
(5) TSILA, part 8, division 6, subdivision 4 must be applied not 24
only to improvements of the lessee but also to the holder, and 25
improvements of the holder, of any sublease over the lease, 26
and for that purpose, a reference in the subdivision to the lease 27
land is a reference to the land the subject of the sublease. 28
Page 63
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 9 Application of provisions of ALA or TSILA
[s 81]
(6) Also, for applying TSILA, part 8, division 6, subdivision 4, 1
references to renewal of a lease may be ignored. 2
(7) For TSILA, section 127(3), the value of the lease land is the 3
amount decided by the chief executive under this Act. 4
Subdivision 2 Torres Strait Islander land 5
81 Applying TSILA, pt 10 (Provisions about mortgages of 6
leases over Torres Strait Islander land) 7
(1) TSILA, part 10 applies to a lease to which this division 8
applies if it is over Torres Strait Islander land and was granted 9
after the land became Torres Strait Islander land. 10
(2) For applying TSILA, part 10, the lease is taken to be-- 11
(a) if the lease is in force as a sublease of a townsite lease 12
under TSILA--a townsite sublease as mentioned in 13
TSILA, section 136, definition lease, paragraph (b); or 14
(b) otherwise--a standard lease as mentioned in TSILA, 15
section 136, definition lease, paragraph (a). 16
(3) For applying TSILA, section 138(7), the reference to a person 17
who would be entitled to a grant of the lease is taken to be a 18
reference to a person to whom, under this Act, the lease may 19
be transferred. 20
Subdivision 3 Torres Strait Islander trust land 21
82 Definition for sdiv 3 22
In this subdivision-- 23
relevant lease means a lease to which this division applies, 24
but does not include a lease that, when it was granted, was 25
granted over transferred land under TSILA. 26
Page 64
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 9 Application of provisions of ALA or TSILA
[s 83]
83 Applying TSILA, s 141 (Relationship with Land Act) 1
TSILA, section 141 applies for establishing-- 2
(a) the relationship between the Land Act and this Act in 3
relation to Torres Strait Islander trust land and a relevant 4
lease; and 5
(b) the status under the Land Act of a relevant lease; 6
in the same way it applies for establishing-- 7
(c) the relationship between the Land Act and TSILA in 8
relation to Torres Strait Islander trust land and a trustee 9
(Torres Strait Islander) lease; and 10
(d) the status under the Land Act of a trustee (Torres Strait 11
Islander) lease. 12
84 Applying TSILA, s 143 (Amending trustee (Torres Strait 13
Islander) lease) 14
TSILA, section 143 applies to a relevant lease as if the lease 15
were a registered trustee (Torres Strait Islander) lease. 16
85 Applying TSILA, s 144 (Mortgage of trustee (Torres Strait 17
Islander) lease) 18
TSILA, section 144 applies to a relevant lease as if-- 19
(a) the lease were a trustee (Torres Strait Islander) lease; 20
and 21
(b) the reference in TSILA, section 144(2)(a)(iii) to a 22
person entitled under TSILA to a grant of a lease were a 23
reference to a person to whom, under this Act, the lease 24
may be transferred. 25
Page 65
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 10 Miscellaneous
[s 86]
Part 10 Miscellaneous 1
86 Plans of survey 2
(1) The Minister must ensure that a plan of survey, capable of 3
registration in a register kept under the Land Act or Land Title 4
Act, is prepared to show the identified, and as appropriate, the 5
agreed, boundaries of any lease proposed to be granted under 6
this Act. 7
(2) In a proceeding under this Act in the Land Court, the Land 8
Court may order the Minister or the chief executive to prepare 9
a plan of survey, capable of registration in a register kept 10
under the Land Act or Land Title Act, necessary for giving 11
effect to a decision of the court. 12
87 Limitation on qualification requirement 13
(1) The qualification requirement has no effect in relation to any 14
of the following-- 15
(a) who may be the holder of a lease entitlement; 16
(b) who may continue to be the holder of a 1985 Act 17
granted lease; 18
(c) who may be the grantee of a new Act granted lease. 19
(2) In this section-- 20
qualification requirement means any provision under the 21
1985 Land Holding Act having the effect of requiring 22
residency for any period in a trust area. 23
88 Delegations 24
(1) The Minister may delegate the Minister's powers under this 25
Act as the Minister to the chief executive. 26
(2) A delegation of the Minister's power to the chief executive 27
may permit the subdelegation of the power to an appropriately 28
qualified public service officer. 29
Page 66
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 10 Miscellaneous
[s 89]
(3) The chief executive may delegate the chief executive's powers 1
under this Act as the chief executive to an appropriately 2
qualified public service officer. 3
(4) In this section-- 4
appropriately qualified, for a person to whom a power under 5
this Act may be delegated or subdelegated, includes having 6
the qualifications, experience or standing appropriate to 7
exercise the power. 8
89 Application to Land Court if no interested persons 9
identified 10
(1) This section applies if the Minister is satisfied that-- 11
(a) either of the following is deceased-- 12
(i) the holder of a lease entitlement included in a lease 13
entitlement notice currently in force; 14
(ii) the lessee of a 1985 Act granted lease; and 15
(b) it has not been possible, after making enquiries that are 16
reasonable in the circumstances, to identify any 17
interested person in the estate of the deceased holder or 18
lessee. 19
(2) The Minister may apply to the Land Court for an order that-- 20
(a) the Minister has made all enquiries that are reasonable 21
in the circumstances to identify interested persons; and 22
(b) the lease entitlement or lease is ended, and converted 23
into a right to compensation for its loss. 24
(3) Compensation mentioned in subsection (2)(b) may be claimed 25
from the State, commenced by an application to the Minister, 26
within-- 27
(a) 3 years after the court's order under the subsection; or 28
(b) a later time approved by the Minister if the Minister 29
considers an extension of time is reasonable in the 30
circumstances. 31
Page 67
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 10 Miscellaneous
[s 90]
(4) If the Minister and a person claiming compensation can not 1
agree on the amount of compensation, the claimant may apply 2
to the Land Court and the court may decide the amount of the 3
compensation. 4
(5) For a lease entitlement, the compensation is the value of the 5
lease, as at the date the claim is made to the Minister, that 6
would have been granted to satisfy the lease entitlement if the 7
holder had not been deceased. 8
(6) For a 1985 Act granted lease, the compensation is the value of 9
the lease, as at the date the claim is made to the Minister, if the 10
lease had not ended. 11
90 Information Privacy Act does not stop sharing of 12
information necessary for effective operation of this Act 13
(1) IPA does not operate to stop the disclosure of personal 14
information to the extent its disclosure is reasonably 15
necessary to allow a person to participate effectively in 16
consultation or negotiation about-- 17
(a) the identification of a lease entitlement; or 18
(b) satisfying a lease entitlement; or 19
(c) relocating the boundaries of a 1985 Act granted lease; or 20
(d) the ownership of improvements on land the subject of a 21
lease entitlement or a 1985 Act granted lease. 22
(2) In this section-- 23
disclose, personal information, see IPA, section 23. 24
IPA means the Information Privacy Act 2009. 25
personal information means personal information under IPA. 26
91 Review of Act 27
(1) The Minister must, within 5 years after the commencement of 28
this section, carry out a review of the operation and 29
effectiveness of the Act. 30
Page 68
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 11 Repeal and transitional provisions
[s 92]
(2) The Minister must, a soon as practicable after the review is 1
completed, cause a report on the outcome to be laid before the 2
Legislative Assembly. 3
92 Approval of forms 4
The chief executive may approve forms for use under this Act. 5
93 Regulation-making power 6
(1) The Governor in Council may make regulations under this 7
Act. 8
(2) A regulation may provide for fees payable under this Act and 9
for matters for which they are payable. 10
Part 11 Repeal and transitional 11
provisions 12
94 Repeal 13
The Aborigines and Torres Strait Islanders (Land Holding) 14
Act 1985, No. 41 is repealed. 15
95 Continuation of proceeding 16
(1) This section applies if a proceeding was commenced under 17
the 1985 Land Holding Act, but not completed, before the 18
commencement of this section. 19
(2) The proceeding may be completed under the 1985 Land 20
Holding Act as if this Act had not commenced. 21
Page 69
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 96]
96 Effect of regulation amendment 1
(1) The amendment of a relevant regulation under this Act does 2
not affect the Governor in Council's power to further amend 3
the regulation or to repeal it. 4
(2) In this section-- 5
relevant regulation means-- 6
(a) the Sustainable Planning Regulation 2009; or 7
(b) the Wild Rivers Regulation 2007. 8
Part 12 Amendment of Acts 9
Division 1 Amendment of this Act 10
97 Act amended 11
This division amends this Act. 12
98 Amendment of long title 13
Long title, from `, and to amend'-- 14
omit. 15
Division 2 Amendment of Aboriginal Land Act 16
1991 17
Subdivision 1 Act amended 18
99 Act amended 19
This division amends the Aboriginal Land Act 1991. 20
Page 70
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 100]
Subdivision 2 Amendments for use of Aboriginal 1
land 2
100 Amendment of s 45 (Existing interests) 3
Section 45(7)-- 4
omit, insert-- 5
`(7) In this section-- 6
interest includes-- 7
(a) native title; and 8
(b) a right of a local government to access, occupy, use or 9
maintain a facility on the land; and 10
(c) an interest in favour of the State or Commonwealth 11
other than an interest that is not registered.' 12
101 Insertion of new s 45A 13
After section 45-- 14
insert-- 15
`45A Existing interests held by local government 16
`(1) This section applies if a local government has an existing 17
interest under section 45 to access, occupy, use or maintain a 18
facility on Aboriginal land. 19
`(2) If the local government does not intend to continue to access, 20
occupy, use or maintain the facility, the local government 21
must give the trustee of the land written notice of that fact. 22
`(3) If subsection (2) does not apply, the local government and the 23
trustee of the land must use their best endeavours to provide 24
for the continued access, occupation, use or maintenance of 25
the facility under a registered interest in the land given by the 26
trustee of the land.'. 27
Page 71
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 102]
102 Amendment of s 199 (Use of Aboriginal land preserved) 1
Section 199-- 2
insert-- 3
`(8) For subsection (1) but without otherwise limiting the 4
subsection, land is being occupied or used by the State or 5
Commonwealth if, immediately before becoming Aboriginal 6
land, it was a reserve under the Land Act and the State or 7
Commonwealth was the trustee of the reserve.'. 8
Subdivision 3 Other amendments 9
103 Amendment of s 45 (Existing interests) 10
(1) Section 45(2)(a)-- 11
omit, insert-- 12
`(a) a 1985 Act granted lease or a new Act granted lease 13
under the new Land Holding Act; or'. 14
104 Amendment of s 62 (Tribunal to notify making of claims) 15
Section 62(6), `(5)(a)'-- 16
omit, insert-- 17
`(5)(b)'. 18
105 Amendment of s 104 (Transfer of Aboriginal land) 19
Section 104(1)(c), `a CATSI'-- 20
omit, insert-- 21
`to a CATSI'. 22
106 Amendment of s 120 (Restrictions on grant of standard 23
lease to an Aborigine) 24
Section 120(1), `standard'-- 25
Page 72
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 107]
omit, insert-- 1
`a standard'. 2
107 Amendment of s 132 (Lessee of townsite lease taken to 3
be lessor of existing leases) 4
Section 132(1)(a)-- 5
omit, insert-- 6
`(a) a 1985 Act granted lease or a new Act granted lease 7
under the new Land Holding Act;'. 8
108 Amendment of s 142 (Leases for private residential 9
purposes--general conditions and requirements) 10
Section 142-- 11
insert-- 12
`(4) If the lessee is the recipient of a hardship certificate under the 13
new Land Holding Act and the certificate has not previously 14
been used under this section, the value of the lease land under 15
subsection (1)(a)(iii) must be taken to be nil, whether or not 16
the land identified in the certificate is the same as the lease 17
land.'. 18
109 Amendment of s 146 (Lease, sublease and particular 19
dealings to be registered) 20
Section 146(2), `land,'-- 21
omit, insert-- 22
`land'. 23
110 Amendment of s 147 (Definitions for div 6) 24
(1) Section 147, definition lessor, paragraph (b), `townsite 25
sublease under which'-- 26
omit, insert-- 27
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Part 12 Amendment of Acts
[s 111]
`townsite lease under which'. 1
(2) Section 147, definition residential lease, paragraph (a), 2
`120(1)(a)(i)'-- 3
omit, insert-- 4
`119(1)(a)(i)'. 5
(3) Section 147, definition residential lease, paragraph (b), 6
`135(2)(a)'-- 7
omit, insert-- 8
`133(2)(a)'. 9
111 Amendment of pt 12 hdg (Provision about particular 10
claimable land) 11
Part 12, heading, `Provision'-- 12
omit, insert-- 13
`Provisions'. 14
112 Amendment of s 202 hdg (Application of Mineral 15
Resources Act) 16
Section 202, heading, after `Act'-- 17
insert-- 18
`1989'. 19
113 Amendment of s 243 hdg (Staff of tribunal employed 20
under Public Service Act) 21
Section 243, heading, after `Act'-- 22
insert-- 23
`2008'. 24
114 Amendment of sch 1 (Dictionary) 25
Schedule 1-- 26
Page 74
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 115]
insert-- 1
`new Land Holding Act means the Aboriginal and Torres 2
Strait Islander Land Holding Act 2012.'. 3
Division 3 Amendment of Environmental 4
Protection Act 1994 5
115 Act amended 6
This division amends the Environmental Protection Act 1994. 7
116 Amendment of s 38 (Who is an affected person for a 8
project) 9
(1) Section 38(2)(f), `section 87(2) or 87(4)(b) of that Act--a 10
grantee'-- 11
omit, insert-- 12
`section 202(2) or (4)(b) of that Act--the trustee'. 13
(2) Section 38(2)(i), `section 84(2) or 84(4)(b) of that Act--a 14
grantee'-- 15
omit, insert-- 16
`section 151(2) of that Act--the trustee'. 17
(3) Section 38(2)(j)-- 18
omit, insert-- 19
`(j) for land that, under the Aboriginal and Torres Strait 20
Islander Land Holding Act 2012, is lease land for a 1985 21
Act granted lease or a new Act granted lease--the 22
lessee;'. 23
117 Amendment of s 579 (Compensation) 24
Section 579(6), definition owner, paragraph (c)-- 25
omit, insert-- 26
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 118]
`(c) for land that, under the Aboriginal and Torres Strait 1
Islander Land Holding Act 2012, is lease land for a 1985 2
Act granted lease or a new Act granted lease--the 3
lessee; or'. 4
Division 4 Amendment of Land Act 1994 5
Subdivision 1 Act amended 6
118 Act amended 7
This division amends the Land Act 1994. 8
Subdivision 2 Amendment for subdivision of 9
DOGIT land 10
119 Amendment of s 34P (Requirement about covenant for 11
DOGIT land) 12
(1) Section 34P, heading, `Requirement about covenant for'-- 13
omit, insert-- 14
`Subdivision of'. 15
(2) Section 34P(1) to (3)-- 16
renumber as section 34P(3) to (5). 17
(3) Section 34P-- 18
insert-- 19
`(1) DOGIT land may be subdivided by a plan of subdivision 20
creating 2 or more lots. 21
`(2) The plan of subdivision mentioned in subsection (1) may be 22
registered only with the approval of the Minister, unless the 23
plan of subdivision is only for the purposes of the resumption, 24
taking or other compulsory acquisition under an Act of part of 25
the DOGIT land.' 26
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 120]
Subdivision 3 Amendments for indigenous 1
cultural interests 2
120 Amendment of s 155 (Length of term leases) 3
(1) Section 155(5)(c)(ii)-- 4
omit, insert-- 5
`(ii) if the Minister considers it is appropriate for there 6
to be an indigenous cultural interest for all or part 7
of the lease land--the lease land is subject to an 8
indigenous cultural interest; and'. 9
(2) Section 155(5)(d)(ii)-- 10
omit, insert-- 11
`(ii) the terms of any approved agreement for an 12
indigenous cultural interest.'. 13
(3) Section 155(6)(e)-- 14
omit, insert-- 15
`(e) the lease land is subject to an indigenous cultural 16
interest;'. 17
(4) Section 155(6)(f)(ii)-- 18
omit, insert-- 19
`(ii) the terms of any approved agreement for an 20
indigenous cultural interest;'. 21
121 Amendment of s 155B (Extensions for a term of up to 50 22
years) 23
(1) Section 155B(1)(b)(ii)-- 24
omit, insert-- 25
`(ii) if the Minister considers it is appropriate for there 26
to be an indigenous cultural interest for all or part 27
of the lease land--the lease land is subject to an 28
indigenous cultural interest; and'. 29
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 122]
(2) Section 155B(3)(c) and (d)-- 1
omit, insert-- 2
`(c) the lessee has complied with the following for the lease 3
land-- 4
(i) any conservation agreement, or conservation 5
covenant; 6
(ii) any approved agreement for an indigenous cultural 7
interest; and 8
(d) the extension is appropriate, having regard to either or 9
both of the following for the lease land-- 10
(i) the terms of any conservation agreement or 11
conservation covenant; 12
(ii) the terms of any approved agreement for an 13
indigenous cultural interest.'. 14
122 Amendment of s 155BA (Extensions for a term of up to 75 15
years) 16
(1) Section 155BA(1)(b)(ii)-- 17
omit, insert-- 18
`(ii) the lease land is subject to an indigenous cultural 19
interest; and'. 20
(2) Section 155BA(3)(d)-- 21
omit, insert-- 22
`(d) the lessee has complied with the approved agreement for 23
the indigenous cultural interest for the lease land; and'. 24
(3) Section 155BA(3)(e)(ii)-- 25
omit, insert-- 26
`(ii) the terms of the approved agreement for the 27
indigenous cultural interest;'. 28
Page 78
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 123]
123 Amendment of s 155D (When Minister may reduce) 1
Section 155D(1)(c)-- 2
omit, insert-- 3
`(c) if the lease land was subject to an indigenous cultural 4
interest when the lease was granted or extended-- 5
(i) the interest ceases to be in effect for the land; or 6
(ii) the Minister considers the lessee has not complied 7
with the terms of the approved agreement for the 8
interest;'. 9
124 Amendment of s 159 (General provisions for deciding 10
application) 11
Section 159(1)(g)-- 12
omit, insert-- 13
`(g) whether the lessee has complied with, or to what extent 14
the lessee has complied with, the following-- 15
(i) the conditions of the lease; 16
(ii) any land management agreement for the lease; 17
(iii) any conservation agreement or conservation 18
covenant applying to all or part of the lease land; 19
(iv) any approved agreement for an indigenous cultural 20
interest for the lease land;'. 21
125 Insertion of new s 188A 22
Chapter 5, part 1, division 2-- 23
insert-- 24
`188A Limited rent discount for particular leases 25
`(1) The lessee for a relevant lease may apply to the Minister for a 26
discount of 25% (the discount) on the rent payable for the 27
lease for a period of 5 years (the discount period) if-- 28
(a) the application is made before 1 July 2018; and 29
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 125]
(b) the discount has not previously been approved for the 1
lease. 2
`(2) The Minister may approve the application if-- 3
(a) the lease land is subject to an indigenous cultural 4
interest; and 5
(b) the lessee has withdrawn from a native title claim 6
made-- 7
(i) by the indigenous party for the indigenous cultural 8
interest; and 9
(ii) over the part of the lease land that is subject to the 10
interest; and 11
(c) either-- 12
(i) the lessee remains responsible for all costs 13
associated with any public liability insurance the 14
lessee requires the indigenous party for the 15
indigenous cultural interest to hold; or 16
(ii) the lessee has waived, in writing, any requirement 17
mentioned in subparagraph (i). 18
`(3) If the Minister decides to approve the application, the discount 19
applies to the lease for 5 years starting on the later of the 20
following days-- 21
(a) 1 July 2013; 22
(b) the first day of the next full rental period following the 23
day of approval. 24
`(4) However, if any of the following happen during the discount 25
period, the discount ends-- 26
(a) the indigenous cultural interest to which the lease land is 27
subject ends; 28
(b) the lessee becomes a respondent to a native title claim 29
made-- 30
(i) by the indigenous party for the indigenous cultural 31
interest; and 32
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 126]
(ii) over the part of the lease land that is subject to the 1
interest; 2
(c) the lessee requires the indigenous party for the 3
indigenous cultural interest to be liable for costs 4
associated with any public liability insurance relating to 5
the interest. 6
`(5) In this section-- 7
relevant lease means a lease-- 8
(a) for rural leasehold land of 100ha or more; and 9
(b) for a term of 20 years or more.'. 10
126 Replacement of s 199A (Land may be used only for 11
tenure's purpose) 12
Section 199A-- 13
omit, insert-- 14
`199A Land may be used only for tenure's purpose 15
`(1) Licence land or permit land may be used only for the purpose 16
for which the licence or permit was issued. 17
`(2) Lease land may be used only for-- 18
(a) the purpose for which the lease was originally issued; or 19
(b) if the purpose is changed under section 154, the purpose 20
of the lease as changed. 21
`(3) Lease land the subject of a term lease for pastoral purposes 22
may be used only for agricultural or grazing purposes, or both. 23
`(4) Despite subsections (2) and (3) lease land may be used under 24
an approved agreement for an indigenous cultural interest for 25
the lease land.'. 26
127 Insertion of new ss 202AA and 202AB 27
Chapter 5, part 2, division 1-- 28
insert-- 29
Page 81
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 127]
`202AA Notice to transferee if lease land subject to 1
indigenous cultural interest 2
`(1) This section applies if-- 3
(a) a lease is transferred; and 4
(b) the lease land is subject to an indigenous cultural 5
interest. 6
`(2) The lease is subject to the condition that the lessee must, 7
within 28 days after registration of the transfer, give written 8
notice of the transfer, and the effect of section 373ZK(2), to-- 9
(a) if the approved agreement for the indigenous cultural 10
interest is an indigenous access and use agreement--the 11
indigenous parties for the interest; or 12
(b) if the approved agreement for the indigenous cultural 13
interest is an indigenous land use agreement-- 14
(i) the native title parties to the agreement, at their 15
address as recorded in the Commonwealth ILUA 16
register; and 17
(ii) the native title registrar. 18
`202AB Notice to sublessee if lease land is or is to be subject to 19
indigenous cultural interest 20
`(1) Subsection (2) applies if-- 21
(a) a proposed sublease is to be over lease land; and 22
(b) the lease land is subject to an indigenous cultural 23
interest. 24
`(2) The lessee for the lease land must give the sublessee a copy of 25
the approved agreement for the indigenous cultural interest at 26
least 28 days before the start of the sublease. 27
Maximum penalty--50 penalty units. 28
`(3) Subsection (4) applies if-- 29
(a) a sublease is over lease land; and 30
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Part 12 Amendment of Acts
[s 128]
(b) the lease land is to be subject to an indigenous cultural 1
interest. 2
`(4) The lessee for the lease land must give the sublessee a copy of 3
the approved agreement for the indigenous cultural interest at 4
least 28 days before the indigenous cultural interest is 5
registered. 6
Maximum penalty--50 penalty units.'. 7
128 Amendment of s 325 (Effect of registration of transfer) 8
Section 325(3) to (5)-- 9
omit. 10
129 Insertion of new ch 6, pt 4, div 8D 11
Chapter 6, part 4-- 12
insert-- 13
`Division 8D Indigenous cultural interests 14
`Subdivision 1 Preliminary 15
`373ZB Definitions for div 8D 16
`In this division-- 17
approved agreement, for an indigenous cultural interest, 18
means either of the following agreements if approved by the 19
Minister under section 373ZD for the interest-- 20
(a) an indigenous access and use agreement; 21
(b) an indigenous land use agreement. 22
indigenous access and use agreement-- 23
(a) means an agreement between a lessee and Aboriginal 24
people or Torres Strait Islanders that allows the 25
Aboriginal people or Torres Strait Islanders to carry out 26
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Part 12 Amendment of Acts
[s 129]
the following activities on the lease land as agreed to by 1
the lessee and the Aboriginal people or Torres Strait 2
Islanders-- 3
(i) activities for traditional purposes of the Aboriginal 4
people or Torres Strait Islanders; 5
Examples of activities for subparagraph (i)-- 6
· camping, fishing, gathering or hunting 7
· performing rites or other ceremonies 8
· visiting sites of significance 9
(ii) activities incidental to an activity mentioned in 10
subparagraph (i); and 11
Examples of activities for subparagraph (ii)-- 12
· controlling pests 13
· teaching rites or other ceremonies 14
· preserving sites of significance 15
(b) does not include an indigenous land use agreement. 16
indigenous cultural interest, for land, means an interest in the 17
land that consists of the right to access and use the land under 18
an approved agreement for the interest. 19
indigenous land use agreement means an indigenous land 20
use agreement recorded in the Commonwealth ILUA register. 21
mandatory terms see section 373ZC(1). 22
set format see section 373ZC(3). 23
`Subdivision 2 Mandatory terms 24
`373ZC Mandatory terms for approved agreements 25
`(1) The Minister may fix the terms (the mandatory terms) to be 26
included in indigenous access and use agreements, or 27
indigenous land use agreements, proposed to be approved 28
agreements for indigenous cultural interests. 29
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 129]
`(2) However, the mandatory terms can not be inconsistent with-- 1
(a) for indigenous access and use agreements--the 2
requirements stated in schedule 3, part 1, items 1 to 7; or 3
(b) for indigenous land use agreements--the requirements 4
stated in schedule 3, part 2, items 1 to 7. 5
`(3) The Minister may fix the format (the set format) to be 6
complied with for indigenous access and use agreements, or 7
indigenous land use agreements, proposed to be approved 8
agreements for indigenous cultural interests. 9
`(4) The Minister may fix the mandatory terms and the set format 10
by reference to 1 or more templates for indigenous access and 11
use agreements and indigenous land use agreements. 12
`(5) A decision of the Minister under subsection (1) or (3) takes 13
effect on the day notice of the decision is published in the 14
gazette. 15
`(6) The department must publish the mandatory terms on its 16
website. 17
`Subdivision 3 Creation and registration 18
`373ZD Creation only by registration 19
`(1) An indigenous cultural interest for land-- 20
(a) is created by registering the document creating the 21
interest in the appropriate register; and 22
(b) can not be created other than under this division. 23
`(2) An indigenous cultural interest for land can not be registered 24
unless the indigenous access and use agreement, or the 25
indigenous land use agreement, for the interest is approved by 26
the Minister. 27
`(3) The Minister may approve the indigenous access and use 28
agreement, or the indigenous land use agreement, only if-- 29
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 129]
(a) the party to the agreement who is a lessee is proposing 1
to have registered an indigenous cultural interest 2
relating to the agreement; and 3
(b) the Minister is satisfied the agreement-- 4
(i) includes the mandatory terms for the agreement; 5
and 6
(ii) complies with the set format for the agreement; 7
and 8
(c) the Minister is satisfied the conditions for the exercise of 9
traditional activities under the agreement are appropriate 10
having regard to the following-- 11
(i) the types of the activities; 12
(ii) the size of the area to which the agreement applies; 13
(iii) the reasonableness of any restrictions imposed; 14
(iv) another matter the Minister considers relevant. 15
`(4) The Minister's approval may be given subject to conditions. 16
`(5) In this section-- 17
traditional activities means-- 18
(a) activities for traditional purposes; and 19
(b) activities incidental to an activity mentioned in 20
paragraph (a). 21
`373ZE Requirements for registration 22
`(1) The chief executive may register a document creating an 23
indigenous cultural interest for land only if the document-- 24
(a) is validly executed; and 25
(b) includes-- 26
(i) a description and map adequate to identify the part 27
of the lease land the subject of the interest; and 28
(ii) the terms of the interest, including the right to 29
access and use the land; and 30
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 129]
(c) is accompanied by a copy of the Minister's approval 1
under section 373ZD. 2
`(2) This section does not limit the matters that the appropriate 3
form for a document creating an indigenous cultural interest 4
may require to be included in the document. 5
`Subdivision 4 Amendments and dealings 6
`373ZF Amending interest 7
`(1) An indigenous cultural interest may be amended only by 8
registering a document amending the interest. 9
`(2) However, the amendment can not-- 10
(a) increase or decrease the area of the land the subject of 11
the indigenous cultural interest; or 12
(b) add or remove a party to the interest. 13
`(3) Also, if the amendment relates to an amendment or 14
replacement of the approved agreement for the indigenous 15
cultural interest, the amendment of the interest must be 16
approved by the Minister before the document amending the 17
interest is registered. 18
`(4) The Minister may approve an amendment relating to an 19
amendment or replacement of the approved agreement for the 20
indigenous cultural interest only if-- 21
(a) the Minister is satisfied the proposed amended 22
agreement or replacement agreement-- 23
(i) includes the mandatory terms for the agreement; 24
and 25
(ii) complies with the set format for the agreement; 26
and 27
(b) the Minister is satisfied the conditions for the exercise of 28
traditional activities under the proposed amended 29
agreement or replacement agreement are appropriate 30
having regard to the following-- 31
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 129]
(i) the types of the activities; 1
(ii) the size of the area to which the agreement applies; 2
(iii) the reasonableness of any restrictions imposed; 3
(iv) another matter the Minister considers relevant. 4
`(5) The Minister's approval may be given subject to conditions. 5
`(6) In this section-- 6
traditional activities means-- 7
(a) activities for traditional purposes; and 8
(b) activities incidental to an activity mentioned in 9
paragraph (a). 10
`373ZG When amendment or replacement of approved 11
agreement ends interest 12
`(1) Registration of an indigenous cultural interest ends if the 13
approved agreement for the interest is amended or replaced 14
and the Minister refuses to approve the change under section 15
373ZF. 16
`(2) If an indigenous cultural interest ends under subsection (1), 17
the chief executive must remove the interest from the 18
appropriate register as soon as the chief executive becomes 19
aware of its ending. 20
`(3) No compensation is payable by the State for removal of the 21
interest. 22
`373ZH Surrendering or removing interest 23
`(1) On lodgement of a document surrendering an indigenous 24
cultural interest for land, the chief executive may register the 25
surrender to the extent shown in the document. 26
`(2) However, a document surrendering an indigenous cultural 27
interest for land may be registered only with the approval of 28
the Minister. 29
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 129]
`(3) On registration of the document, the indigenous cultural 1
interest is surrendered to the extent shown in the document. 2
`(4) The chief executive may remove an indigenous cultural 3
interest for land from the appropriate register if-- 4
(a) a request to remove the interest is lodged and the request 5
establishes that an event on which the interest was 6
intended to end has happened; or 7
(b) the chief executive receives a request to remove the 8
interest under an Act of the Commonwealth. 9
`373ZI Notice of end of approved agreement 10
`(1) This section applies if an approved agreement for an 11
indigenous cultural interest ends. 12
`(2) If the approved agreement is an indigenous access and use 13
agreement, the lessee for the lease land subject to the 14
indigenous cultural interest relating to the approved 15
agreement must notify the Minister of the ending of the 16
agreement within 10 business days of its ending. 17
`(3) If the approved agreement is an indigenous land use 18
agreement, the lessee for the lease land subject to the 19
indigenous cultural interest must notify the Minister of the 20
ending of the agreement within-- 21
(a) if the agreement ends because of a determination of 22
native title--28 business days after the determination; or 23
(b) otherwise--10 business days after the agreement 24
ending. 25
`373ZJ Continuation of interest 26
`(1) Subsection (2) applies if-- 27
(a) an indigenous cultural interest is removed from the 28
leasehold land register because a lease ends; and 29
(b) immediately before the lease ends, the lease land was 30
subject to the interest. 31
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 129]
`(2) The relevant Minister for the land after the lease ends may 1
give written approval for the interest to continue unless the 2
land is freehold land. 3
`(3) If an indigenous cultural interest is continued under 4
subsection (2)-- 5
(a) the continuation must be recorded in the appropriate 6
register; and 7
(b) for this Act-- 8
(i) the State is taken to be a party to the approved 9
agreement for the indigenous cultural interest in 10
place of the lessee; and 11
(ii) the rights and responsibilities of the lessee under 12
the approved agreement become the rights and 13
responsibilities of the State; and 14
(c) this division continues to apply to the interest with 15
necessary changes. 16
`(4) In this section-- 17
relevant Minister, for land, means-- 18
(a) if the land is within a State forest, timber reserve or
forest entitlement area--the Minister administering the 20
19
Forestry Act 1959; or 21
(b) if the land is within a nature conservation area or 22
specified national park--the Minister administering the 23
Nature Conservation Act 1992; or 24
(c) if the land is unallocated State land, trust land or licence 25
land--the Minister. 26
nature conservation area means the following under the
Nature Conservation Act 1992-- 28
27
(a) a national park (scientific); 29
(b) a national park; 30
(c) a national park (recovery); 31
(d) a conservation park; 32
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 129]
(e) a resources reserve; 1
(f) a forest reserve. 2
specified national park means the following under the Nature 3
Conservation Act 1992-- 4
(a) a national park (Aboriginal land); 5
(b) a national park (Torres Strait Islander land); 6
(c) a national park (Cape York Peninsula Aboriginal land); 7
(d) an indigenous joint management area. 8
`373ZK Transfer of lease affecting interest 9
`(1) This section applies if-- 10
(a) lease land is subject to an indigenous cultural interest; 11
and 12
(b) a transfer of the lease for the lease land is registered. 13
`(2) For this Act-- 14
(a) the transferee is taken to be a party to the approved 15
agreement for the indigenous cultural interest in place of 16
the transferor; and 17
(b) the rights and responsibilities of the transferor under the 18
approved agreement become the rights and 19
responsibilities of the transferee. 20
`373ZL Reviewing approved agreements for indigenous 21
cultural interests 22
`(1) The Minister may review the approved agreement for an 23
indigenous cultural interest to assess-- 24
(a) the compliance of the parties to the agreement with their 25
obligations under the agreement; or 26
(b) whether the agreement has been changed or has ended. 27
`(2) A lessee of land that is subject to an indigenous cultural 28
interest must give the Minister a written report about the 29
Page 91
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 130]
matters mentioned in subsection (1) when asked to do so by 1
the Minister. 2
`(3) Also, the lessee must give the Minister a written report about 3
the matters mentioned in subsection (1) every 10 years after-- 4
(a) if the Minister has not made a request of the lessee 5
under subsection (2)--the creation of the interest; or 6
(b) if the Minister has made a request of the lessee under 7
subsection (2)--the last request by the Minister under 8
that subsection.'. 9
130 Amendment of s 392 (Delegation by Minister) 10
Section 392(4), `However, the'-- 11
omit, insert-- 12
`Despite subsections (1) to (3), the'. 13
131 Amendment of s 393 (Delegation by chief executive) 14
Section 393(4A), `However'-- 15
omit, insert-- 16
`Despite subsection (1)'. 17
132 Amendment of sch 1A (Provisions that include 18
mandatory conditions for tenures) 19
Schedule 1A, entry for section 325(5)-- 20
omit. 21
133 Insertion of new sch 3 22
After schedule 2-- 23
insert-- 24
Page 92
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 133]
`Schedule 3 Requirements for approved 1
agreements 2
section 373ZC(2) 3
`Part 1 Indigenous access and use 4
agreements 5
1 The lease affected by an indigenous access and use agreement 6
must be a lease for-- 7
(a) rural leasehold land; and 8
(b) a term, including any extension of the lease that has 9
been or may be granted under section 155A or 155B, of 10
20 or more years but no more than 50 years; and 11
(c) lease land that is 100ha or more. 12
2 Native title must not have been extinguished for the land the 13
subject of the lease. 14
3 The parties to an indigenous access and use agreement must 15
be-- 16
(a) the lessee; and 17
(b) the determined native title holders or registered native 18
title claimants for the area that is subject to the 19
agreement. 20
4 An indigenous access and use agreement-- 21
(a) must not provide for the assigning, surrendering or 22
extinguishing of native title over any part of the lease 23
land; and 24
(b) must not provide for the validation of future acts within 25
the meaning of the Native Title Act 1993 (Cwlth), 26
section 233; and 27
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Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 133]
(c) must not provide for the burial of human remains on the 1
lease land by a party to the agreement mentioned in item 2
3(b), unless the party-- 3
(i) is a determined native title holder; and 4
(ii) has the prior consent of the lessee and the chief 5
executive; and 6
(d) must not purport to prevent or be inconsistent with-- 7
(i) the establishment of a nature refuge under the 8
Nature Conservation Act 1992; or 9
(ii) a covenant, of a type mentioned in section 10
373A(4)(b) if the covenantee is the State, being 11
registered; and 12
(e) must not be for a term less than the unexpired term of 13
the lease affected by the agreement, including any 14
extension of the lease that may be granted under section 15
155A or 155B. 16
5 The area that is subject to an indigenous access and use 17
agreement must include-- 18
(a) if the agreement requires the lessee to withdraw from a 19
native title claim made by another party to the 20
agreement-- 21
(i) all parts of the lease land relevant to the other 22
party's native title claim; and 23
(ii) any areas over which native title will be 24
extinguished or the extinguished areas under a 25
determination of native title; or 26
(b) otherwise--all, or the part, of the lease land that is 27
within the other party's determined or registered native 28
title claim area under the Native Title Act 1993 (Cwlth). 29
6 If native title claim areas overlap on the lease land, an 30
indigenous access and use agreement for the lease land must 31
exclude that part of the lease land where one native title claim 32
overlaps another unless-- 33
Page 94
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 133]
(a) the agreement is entered into on behalf of more than one 1
native title claim group; and 2
(b) the native title parties for the claims have agreed that the 3
overlapping claim area is shared country for the 4
purposes of the agreement; and 5
(c) the shared country is clearly described and identified on 6
a map included in the agreement; and 7
(d) the nature and extent of the native title for the shared 8
country, and the responsibilities of the native title parties 9
for the shared country, are stated in the agreement. 10
7 If a party to an indigenous access and use agreement is a 11
registered native title claimant for the area the subject of the 12
agreement and the agreement includes conditions relating to a 13
lessee withdrawing from that party's native title claim, the 14
agreement must include conditions as follows for the purpose 15
of a determination of native title-- 16
(a) the burial of human remains by the registered native title 17
claimant must not take place on the lease land without 18
the prior consent of the lessee and the chief executive; 19
(b) the lessee's rights and interests under the lease and the 20
indigenous access and use agreement must be included 21
as one of the interests under the determination; 22
(c) the areas identified as permanent exclusion areas under 23
the indigenous access and use agreement must be areas 24
in which native title is, subject to the determination, 25
validly extinguished. 26
`Part 2 Indigenous land use 27
agreements 28
1 The lease affected by an indigenous land use agreement must 29
be a lease for-- 30
Page 95
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 133]
(a) rural leasehold land; and 1
(b) a term, including any extension of the lease that has 2
been or may be granted under section 155A, 155B or 3
155BA, of 20 or more years but no more than 75 years; 4
and 5
(c) lease land that is 100ha or more. 6
2 Native title must not have been extinguished for the land the 7
subject of the lease. 8
3 The parties to an indigenous land use agreement must be-- 9
(a) the lessee; and 10
(b) the native title party for the part of the lease land subject 11
to the agreement. 12
4 An indigenous land use agreement-- 13
(a) must not provide for the assigning, surrendering or 14
extinguishing of native title over any part of the lease 15
land; and 16
(b) must allow the native title party to carry out the 17
following activities on the lease land-- 18
(i) activities for traditional purposes of the native title 19
party; 20
Examples of activities for subparagraph (i)-- 21
· camping, fishing, gathering or hunting 22
· performing rites or other ceremonies 23
· visiting sites of significance 24
(ii) activities incidental to an activity mentioned in 25
subparagraph (i); and 26
Examples of activities for subparagraph (ii)-- 27
· controlling pests 28
· teaching rites or other ceremonies 29
· preserving sites of significance 30
(c) must not provide for the burial of human remains on 31
lease land by the native title party unless the native title 32
Page 96
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 133]
party has the prior consent of the lessee and the chief 1
executive; and 2
(d) must not purport to prevent or be inconsistent with-- 3
(i) the establishment of a nature refuge under the 4
Nature Conservation Act 1992; or 5
(ii) a covenant, of a type mentioned in section 6
373A(4)(b) if the covenantee is the State, being 7
registered; and 8
(e) must not be for a term less than the unexpired term of 9
the lease affected by the agreement, including any 10
extension of the lease that may be granted under section 11
155A, 155B or 155BA. 12
5 The area that is subject to an indigenous land use agreement 13
must include-- 14
(a) if the agreement requires the lessee to withdraw from a 15
native title claim made by the native title party-- 16
(i) all parts of the lease land relevant to that party's 17
native title claim; and 18
(ii) any areas over which native title will be 19
extinguished or the extinguished areas under a 20
determination of native title; or 21
(b) otherwise--all, or the part, of the lease land that is 22
within the native title party's determined or registered 23
native title claim area under the Native Title Act 1993 24
(Cwlth). 25
6 If native title claim areas overlap on the lease land, an 26
indigenous land use agreement for the lease land must exclude 27
that part of the lease land where one native title claim overlaps 28
another unless-- 29
(a) the agreement is entered into on behalf of more than one 30
native title claim group; and 31
(b) the native title parties for the claims have agreed that the 32
overlapping claim area is shared country for the 33
purposes of the agreement; and 34
Page 97
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 134]
(c) the shared country is clearly described and identified on 1
a map included in the agreement; and 2
(d) the nature and extent of the native title for the shared 3
country, and the responsibilities of the native title parties 4
for the shared country, are expressed in the agreement. 5
7 If an indigenous land use agreement includes conditions 6
relating to a lessee withdrawing from the native title party's 7
native title claim, the agreement must include conditions as 8
follows for the purpose of a determination of native title-- 9
(a) burial of human remains by the native title party must 10
not take place on the lease land without the prior 11
consent of the lessee and the chief executive; 12
(b) the lessee's rights and interests under the lease and the 13
indigenous land use agreement must be included as one 14
of the interests under a determination; 15
(c) the areas identified as permanent exclusion areas under 16
the indigenous land use agreement are to be areas in 17
which native title is, subject to the determination, validly 18
extinguished. 19
134 Amendment of sch 6 (Dictionary) 20
(1) Schedule 6, definitions ILUA register, indigenous access and 21
use agreement and indigenous land use agreement-- 22
omit. 23
(2) Schedule 6-- 24
insert-- 25
`approved agreement, for an indigenous cultural interest, see 26
section 373ZB. 27
Commonwealth ILUA register means the Register of 28
Indigenous Land Use Agreements under the Native Title Act 29
1993 (Cwlth). 30
determination of native title see the Native Title Act 1993 31
(Cwlth), section 225. 32
Page 98
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 134]
determined native title holders, for an area, means the person 1
or group of persons holding the common or group rights 2
comprising native title in the area under a determination of 3
native title. 4
indigenous access and use agreement see section 373ZB. 5
indigenous cultural interest see section 373ZB. 6
indigenous land use agreement see section 373ZB. 7
indigenous party, for an indigenous cultural interest, means-- 8
(a) if the approved agreement for the interest is an 9
indigenous access and use agreement--the determined 10
native title holders, or registered native title claimants, 11
for the subject area who are a party to the agreement; or 12
(b) if the approved agreement for the interest is an 13
indigenous land use agreement--the native title party 14
for the subject area who is a party to the agreement. 15
mandatory terms, for chapter 6, part 4, division 8D, see 16
section 373ZB. 17
native title see the Native Title Act 1993 (Cwlth), section 223. 18
native title claim means a claim in an application for a 19
determination of native title made to the Federal Court under 20
the Native Title Act 1993 (Cwlth), section 13. 21
native title claim area means an area that is the subject of a 22
native title claim. 23
native title claim group see the Native Title Act 1993 (Cwlth), 24
section 253. 25
native title party see the Native Title Act 1993 (Cwlth), 26
section 253. 27
registered native title claimant see the Native Title Act 1993 28
(Cwlth), section 253. 29
set format, for chapter 6, part 4, division 8D, see section 30
373ZB. 31
shared country means land that is subject to two or more 32
native title claims. 33
Page 99
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 135]
subject area, for an indigenous cultural interest, means the 1
area that is subject to the interest.'. 2
Division 5 Amendment of Land Court Act 2000 3
135 Act amended 4
This division amends the Land Court Act 2000. 5
136 Amendment of s 32A (Indigenous assessors) 6
(1) Section 32A(1), from `to perform functions'-- 7
omit, insert-- 8
`to perform functions for prescribed proceedings to which 9
they are allocated.'. 10
(2) Section 32A(4)-- 11
omit, insert-- 12
`(4) An indigenous assessor who is allocated to a prescribed 13
proceeding is an officer of the Land Court for the 14
proceeding.'. 15
137 Amendment of s 32C (Allocation of indigenous assessor 16
for a proceeding in the cultural heritage division) 17
(1) Section 32C, heading, `for a proceeding in the cultural 18
heritage division'-- 19
omit, insert-- 20
`for a prescribed proceeding'. 21
(2) Section 32C(1), `to a proceeding of the Land Court in its 22
cultural heritage division'-- 23
omit, insert-- 24
`to a prescribed proceeding'. 25
Page 100
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 138]
(3) Section 32C(2), `to a proceeding in the cultural heritage 1
division'-- 2
omit, insert-- 3
`to a prescribed proceeding'. 4
138 Amendment of s 32D (Role of indigenous assessor for a 5
proceeding) 6
(1) Section 32D, heading, `for a proceeding'-- 7
omit, insert-- 8
`for a prescribed proceeding'. 9
(2) Section 32D(1), `for a proceeding in the Land Court in its 10
cultural heritage division'-- 11
omit, insert-- 12
`for a prescribed proceeding'. 13
139 Amendment of s 32J (Land Court has power of the 14
Supreme Court for particular purposes) 15
(1) Section 32J(1)(c), second occurrence-- 16
renumber as section 32J(1)(d). 17
(2) Section 32J(1)(d), as renumbered-- 18
insert-- 19
`(iii) the Aboriginal and Torres Strait Islander Land 20
Holding Act 2012.'. 21
140 Amendment of sch 2 (Dictionary) 22
Schedule 2-- 23
insert-- 24
`prescribed proceeding, for part 2, division 6A, means a 25
proceeding of the Land Court-- 26
(a) in its cultural heritage division; or 27
Page 101
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 141]
(b) under the Aboriginal and Torres Strait Islander Land 1
Holding Act 2012.'. 2
Division 6 Amendment of Mineral Resources 3
Act 1989 4
141 Act amended 5
This division amends the Mineral Resources Act 1989. 6
142 Amendment of sch 2 (Dictionary) 7
(1) Schedule 2, definition owner, paragraph (a)(v), `section 87(2) 8
or 87(4)(b) of that Act--the grantees'-- 9
omit, insert-- 10
`section 202(2) or (4)(b) of that Act--the trustee'. 11
(2) Schedule 2, definition owner, paragraph (a)(vi), `section 84(2) 12
or 84(4)(b) of that Act--the grantees'-- 13
omit, insert-- 14
`section 151(2) of that Act--the trustee'. 15
(3) Schedule 2, definition owner, paragraph (f)-- 16
omit, insert-- 17
`(f) for land that, under the Aboriginal and Torres Strait 18
Islander Land Holding Act 2012, is lease land for a 1985 19
Act granted lease or a new Act granted lease--the 20
lessee; or'. 21
(4) Schedule 2, definition reserve, paragraph (a)(iv), `section 22
87(2) or 87(4)(b)'-- 23
omit, insert-- 24
`section 202(2) or (4)(b)'. 25
(5) Schedule 2, definition reserve, paragraph (a)(v), `section 26
84(2) or 84(4)(b)'-- 27
Page 102
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 143]
omit, insert-- 1
`section 151(2)'. 2
Division 7 Amendment of Survey and Mapping 3
Infrastructure Act 2003 4
143 Act amended 5
This division amends the Survey and Mapping Infrastructure 6
Act 2003. 7
144 Amendment of s 21 (Power to place a permanent survey 8
mark) 9
Section 21(3)-- 10
insert-- 11
`freehold land includes indigenous land that is freehold land, 12
and includes any part of the indigenous land that is subject to 13
a lease or lesser interest.'. 14
145 Amendment of schedule (Dictionary) 15
Schedule, definition indigenous land, `, for part 7,'-- 16
omit. 17
Division 8 Amendment of Sustainable 18
Planning Act 2009 19
146 Act amended 20
This division amends the Sustainable Planning Act 2009. 21
Page 103
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 147]
147 Amendment of sch 3 (Dictionary) 1
Schedule 3, definition indigenous land, paragraphs (a) to 2
(e)-- 3
omit, insert-- 4
`(a) the Aurukun and Mornington Shire Leases Act 1978; 5
(b) the Aboriginal Land Act 1991; 6
(c) the Torres Strait Islander Land Act 1991; 7
(d) the Land Act 1994.'. 8
Division 9 Amendment of Sustainable 9
Planning Regulation 2009 10
148 Regulation amended 11
This division amends the Sustainable Planning Regulation 12
2009. 13
149 Amendment of sch 3 (Assessable development, 14
self-assessable development and type of assessment) 15
Schedule 3, part 1, table 3, item 1, column 2-- 16
insert-- 17
`(l) is for implementing the Aboriginal and Torres Strait 18
Islander Land Holding Act 2012.'. 19
150 Amendment of sch 4 (Development that can not be 20
declared to be development of a particular type--Act, 21
section 232(2)) 22
Schedule 4, table 3, item 2-- 23
insert-- 24
`(j) is for implementing the Aboriginal and Torres Strait 25
Islander Land Holding Act 2012.'. 26
Page 104
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 151]
Division 10 Amendment of Torres Strait Islander 1
Land Act 1991 2
Subdivision 1 Act amended 3
151 Act amended 4
This division amends the Torres Strait Islander Land Act 5
1991. 6
Subdivision 2 Amendments for use of Torres 7
Strait Islander land 8
152 Amendment of s 41 (Existing interests) 9
Section 41(7)-- 10
omit, insert-- 11
`(7) In this section-- 12
interest includes-- 13
(a) native title; and 14
(b) a right of a local government to access, occupy, use or 15
maintain a facility on the land; and 16
(c) an interest in favour of the State or Commonwealth 17
other than an interest that is not registered.'. 18
153 Insertion of new s 41A 19
After section 41-- 20
insert-- 21
`41A Existing interests held by local government 22
`(1) This section applies if a local government has an existing 23
interest under section 41 to access, occupy, use or maintain a 24
facility on Torres Strait Islander land. 25
Page 105
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 154]
`(2) If the local government does not intend to continue to access, 1
occupy, use or maintain the facility, the local government 2
must give the trustee of the land written notice of that fact. 3
`(3) If subsection (2) does not apply, the local government and the 4
trustee of the land must use their best endeavours to provide 5
for the continued access, occupation, use or maintenance of 6
the facility under a registered interest in the land given by the 7
trustee of the land.'. 8
154 Amendment of s 148 (Use of Torres Strait Islander land 9
preserved) 10
Section 148-- 11
insert-- 12
`(8) For subsection (1) but without otherwise limiting the 13
subsection, land is being occupied or used by the State or 14
Commonwealth if, immediately before becoming Torres Strait 15
Islander land, it was a reserve under the Land Act and the 16
State or Commonwealth was the trustee of the reserve.'. 17
Subdivision 3 Other amendments 18
155 Amendment of s 41 (Existing interests) 19
Section 41(2)(a)-- 20
omit, insert-- 21
`(a) a 1985 Act granted lease or a new Act granted lease 22
under the new Land Holding Act; or'. 23
156 Amendment of s 97 (Lessee of townsite lease taken to be 24
lessor of existing leases) 25
(1) Section 97(1)(a)-- 26
omit, insert-- 27
Page 106
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 157]
`(a) a 1985 Act granted lease or a new Act granted lease 1
under the new Land Holding Act;'. 2
(2) Section 97(1)(b), `Act; or'-- 3
omit, insert-- 4
`Act;'. 5
157 Amendment of s 107 (Leases for private residential 6
purposes--general conditions and requirements) 7
Section 107-- 8
insert-- 9
`(4) If the lessee is the recipient of a hardship certificate under the 10
new Land Holding Act and the certificate has not previously 11
been used under this section, the value of the lease land under 12
subsection (1)(a)(iii) must be taken to be nil, whether or not 13
the land identified in the certificate is the same as the lease 14
land.'. 15
158 Amendment of s 111 (Particular dealings to be 16
registered) 17
Section 111(2), `land,'-- 18
omit, insert-- 19
`land'. 20
159 Amendment of s 112 (Definitions for div 6) 21
Section 112, definition lessor, paragraph (b), `townsite 22
sublease under which'-- 23
omit, insert-- 24
`townsite lease under which'. 25
Page 107
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 160]
160 Amendment of s 142 (Trustee (Torres Strait Islander) 1
leases) 2
Section 142(8), `section 37A and'-- 3
omit. 4
161 Amendment of sch 1 (Dictionary) 5
Schedule 1-- 6
insert-- 7
`new Land Holding Act means the Aboriginal and Torres 8
Strait Islander Land Holding Act 2012.'. 9
Division 11 Amendment of Vegetation 10
Management Act 1999 11
162 Act amended 12
This division amends the Vegetation Management Act 1999. 13
163 Amendment of schedule (Dictionary) 14
(1) Schedule, definition indigenous land, paragraph (b)-- 15
omit. 16
(2) Schedule, definition indigenous land, paragraphs (c) to (e)-- 17
renumber as paragraphs (b) to (d). 18
Division 12 Amendment of Wild Rivers 19
Regulation 2007 20
164 Regulation amended 21
This division amends the Wild Rivers Regulation 2007. 22
Page 108
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Part 12 Amendment of Acts
[s 165]
165 Amendment of s 3 (Specified works--other infrastructure 1
(Act, s 48)) 2
Section 3(2), definition indigenous land, paragraphs (a) to 3
(e)-- 4
omit, insert-- 5
`(a) the Aurukun and Mornington Shire Leases Act 1978; 6
(b) the Aboriginal Land Act 1991; 7
(c) the Torres Strait Islander Land Act 1991; 8
(d) the Land Act 1994.'. 9
Page 109
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Schedule
Schedule Dictionary 1
section 8 2
1985 Act granted lease see section 12(2). 3
1985 Land Holding Act means the repealed Aborigines and 4
Torres Strait Islanders (Land Holding) Act 1985. 5
Aboriginal land means Aboriginal land under ALA. 6
Aboriginal trust land means Aboriginal trust land under 7
ALA. 8
affected person means-- 9
(a) for a decision--a person whose interests are reasonably 10
likely to be directly affected by the decision; or 11
(b) for a practical obstacle to the granting of a lease to 12
satisfy a lease entitlement--a person whose interests 13
may be affected by how the obstacle is resolved. 14
agreed boundary relocation see section 53(1). 15
agreed deferred grant see section 46(1). 16
ALA means the Aboriginal Land Act 1991. 17
appropriate register means-- 18
(a) for freehold land--the freehold land register; or 19
(b) for other land--the appropriate register for the land 20
under the Land Act. 21
beneficiary, of a deceased person-- 22
(a) means a person entitled to share in the estate of the 23
deceased person; and 24
(b) includes a person entitled to share in the estate of the 25
deceased person through the estate of another person 26
who is also deceased. 27
Page 110
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Schedule
community reference panel, for a trust area, means the 1
community reference panel established for the trust area under 2
section 13. 3
contested boundary relocation see section 55(1). 4
contested deferred grant see section 47(1). 5
deferred grant, of a lease to satisfy a lease entitlement, see 6
section 39(1). 7
hardship certificate see section 26(1). 8
holder, of a lease entitlement, see section 9(3). 9
housing chief executive means the chief executive of the 10
department in which the Housing Act 2003 is administered. 11
interested person, in the estate of a deceased person (the 12
identified person), means a person who has an interest in the 13
estate, or in the administration of the estate, of the identified 14
person, and who is 1 or more of the following, having regard 15
to the laws of succession-- 16
(a) a beneficiary of the identified person; 17
(b) a personal representative of the identified person or of 18
any other person who is deceased, as provided for in a 19
will or in a grant of probate or letters of administration; 20
(c) a person identified in a JLOMA section 60 certificate. 21
JLOMA means the Aboriginal and Torres Strait Islander 22
Communities (Justice, Land and Other Matters) Act 1984. 23
JLOMA section 60 certificate means a certificate under 24
JLOMA, section 60(3). 25
Land Act means the Land Act 1994. 26
Land Title Act means the Land Title Act 1994. 27
lease boundaries, in relation to a lease, means the boundaries 28
of the land the subject of the lease. 29
lease entitlement see section 9(1). 30
lease entitlement land means the land the subject of a lease 31
entitlement. 32
Page 111
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Schedule
lease entitlement notice, for a lease entitlement, see section 1
15. 2
lease land, in a provision about a lease, means the land the 3
subject of the lease. 4
new Act granted lease means a lease granted under this Act. 5
proper applicant, for a lease, means a person who could 6
reasonably be expected to be a grantee, whether or not the 7
only grantee, of the lease if the lease were to be granted. 8
recipient, of a hardship certificate, means the person 9
identified in the certificate as its recipient. 10
reference entity means-- 11
(a) for a lease entitlement, either-- 12
(i) the trustee of the trust area; or 13
(ii) if some or all of the lease entitlement land is the 14
subject of a townsite lease under ALA or 15
TSILA--the lessee of the townsite lease; or 16
(b) for a 1985 Act granted lease, either-- 17
(i) the trustee of the trust area; or 18
(ii) if some or all of the lease land is the subject of a 19
townsite lease under ALA or TSILA--the lessee of 20
the townsite lease. 21
registered, in relation to a new Act granted lease or a 1985 22
Act granted lease, or an interest over a new Act granted lease 23
or 1985 Act granted lease, means registered under the Land 24
Act or Land Title Act. 25
registrar means the registrar of titles under the Land Title Act. 26
relocation, of the boundaries of a 1985 Act granted lease, is a 27
change, within the trust area for the lease, to the boundaries of 28
the lease land, including, for example, a relocation of all the 29
boundaries of the lease to another location in the trust area. 30
social housing means housing being used to provide 31
subsidised housing for residential use. 32
Page 112
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Schedule
social housing dwelling means a dwelling that the housing 1
chief executive reasonably considers to be social housing. 2
statement of reasons (contested boundary relocation) see 3
section 55(2). 4
statement of reasons (contested deferred grant) see section 5
47(2). 6
statement of reasons (obstacles) see section 31(1). 7
Torres Strait Islander land means Torres Strait Islander land 8
under TSILA. 9
Torres Strait Islander trust land means Torres Strait Islander 10
trust land under TSILA. 11
trust area-- 12
(a) generally--see section 10(1); or 13
(b) for a lease entitlement--see section 9(2). 14
trust area notice see sections 18(2) and 19(1). 15
trustee, of a trust area, see section 10(2). 16
trustee (Aboriginal) lease means a trustee (Aboriginal) lease 17
under ALA. 18
trustee council, for an application made under the 1985 Land 19
Holding Act, section 5, means the entity to which the 20
application was made. 21
trustee (Torres Strait Islander) lease means a trustee (Torres 22
Strait Islander) lease under TSILA. 23
TSILA means the Torres Strait Islander Land Act 1991. 24
© State of Queensland 2012
Page 113
AMENDMENTS TO BILL
Aboriginal and Torres Strait Islander Land Holding Bill 2012
Aboriginal and Torres Strait Islander Land
Holding Bill 2012
Amendments agreed to during Consideration
1 Clause 13 (Establishment of community reference
panels)
Page 19, line 28, `community'--
omit, insert--
`Land Holding Act stakeholder'.
2 Clause 13 (Establishment of community reference
panels)
Page 19, line 29, `community'--
omit, insert--
`Land Holding Act stakeholder'.
3 Clause 13 (Establishment of community reference
panels)
Page 20, line 1, `community'--
omit, insert--
`Land Holding Act stakeholder'.
4 Clause 13 (Establishment of community reference
panels)
Page 20, line 11, `community'--
omit, insert--
`Land Holding Act stakeholder'.
Page 1
Aboriginal and Torres Strait Islander Land Holding Bill 2012
5 Clause 13 (Establishment of community reference
panels)
Page 20, line 14, `community'--
omit, insert--
`Land Holding Act stakeholder'.
6 Clause 30 (Minister refers lease entitlement notice to
community reference panel or reference entity)
Page 31, line 22, `community'--
omit, insert--
`Land Holding Act stakeholder'.
7 Clause 30 (Minister refers lease entitlement notice to
community reference panel or reference entity)
Page 31, line 27, `community'--
omit, insert--
`Land Holding Act stakeholder'.
8 Clause 30 (Minister refers lease entitlement notice to
community reference panel or reference entity)
Page 31, line 28, `community'--
omit, insert--
`Land Holding Act stakeholder'.
9 Clause 30 (Minister refers lease entitlement notice to
community reference panel or reference entity)
Page 32, line 1, `community'--
omit, insert--
`Land Holding Act stakeholder'.
Page 2
Aboriginal and Torres Strait Islander Land Holding Bill 2012
10 Clause 31 (Minister advises of obstacles and gives
statement of reasons)
Page 32, line 11, `community'--
omit, insert--
`Land Holding Act stakeholder'.
11 Clause 41 (Minister may rely on advice)
Page 39, line 24, `community'--
omit, insert--
`Land Holding Act stakeholder'.
12 Clause 42 (Reference to community reference panel)
Page 40, line 1, `community'--
omit, insert--
`Land Holding Act stakeholder'.
13 Clause 42 (Reference to community reference panel)
Page 40, line 2, `community'--
omit, insert--
`Land Holding Act stakeholder'.
14 Clause 51 (Operation of pt 6)
Page 46, line 9, `community'--
omit, insert--
`Land Holding Act stakeholder'.
15 Clause 52 (Consultation about boundaries of lease)
Page 47, line 5, `community'--
omit, insert--
Page 3
Aboriginal and Torres Strait Islander Land Holding Bill 2012
`Land Holding Act stakeholder'.
16 Clause 52 (Consultation about boundaries of lease)
Page 47, line 8, `community'--
omit, insert--
`Land Holding Act stakeholder'.
17 Schedule (Dictionary)
Page 111, lines 1 to 3--
omit.
18 Schedule (Dictionary)
Page 111, after line 26--
insert--
`Land Holding Act stakeholder reference panel, for a trust
area, means the Land Holding Act stakeholder reference panel
established for the trust area under section 13.'.
© State of Queensland 2012
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