Western Australian Current Acts Western Australian Current Acts (1AA) In this section
and section 18A —
approved determination of native title has the
meaning given in the Native Title Act section 253;
claim area , in relation to a registered native
title claim, means the area registered on the Register of Native Title Claims
under the Native Title Act section 186(1)(e) as covered by the registered
native title claim;
determination area , in relation to an approved
determination of native title, means the area registered on the National
Native Title Register under the Native Title Act section 193(2)(c) as covered
by the approved determination of native title;
ILUA means an indigenous land use agreement
registered on the Register of Indigenous Land Use Agreements established and
maintained under the Native Title Act Part 8A;
National Native Title Register has the meaning
given in the Native Title Act section 253;
native title has the meaning given in the Native
Title Act section 223;
Native Title Act means the Native Title Act 1993
(Commonwealth);
native title party , in relation to land, means
the following —
(a) if
the land is the subject of a settlement ILUA — a regional corporation in
relation to that land;
(b) if
the land is not the subject of a settlement ILUA and is within the external
boundary of the determination area of an approved determination of native
title (the relevant determination ), regardless of whether native title in
relation to the land has been extinguished or surrendered — a registered
native title body corporate in relation to the relevant determination;
(c) if
the land is not the subject of a settlement ILUA and is within the external
boundary of the claim area of a registered native title claim (the registered
claim ), regardless of whether native title in relation to the land has been
extinguished or surrendered — a registered native title claimant in
relation to the registered claim;
(d) a
prescribed person or a person of a prescribed class;
native title rights and interests has the meaning
given in the Native Title Act section 223;
new information about an Aboriginal site , in
relation to land the subject of a consent given under subsection (3)(a), means
information about an Aboriginal site on the land, other than information that
a person who made a decision to give, amend or confirm the consent was made
aware of for the purposes of making the decision;
regional corporation means —
(a) in
relation to land the subject of a settlement ILUA referred to in paragraph (a)
of the definition of settlement ILUA — a Regional Corporation, as
defined in the Land Administration (South West Native Title Settlement) Act
2016 section 3, appointed in respect of the land; or
(b) in
relation to the land the subject of the settlement ILUA referred to in
paragraph (b) of the definition of settlement ILUA — the Regional
Entity, as defined in that ILUA; or
(c) in
relation to land the subject of a settlement ILUA referred to in paragraph (c)
of the definition of settlement ILUA — a prescribed corporation that has
functions in respect of the land under, or for the purposes of, the settlement
ILUA;
registered native title body corporate has the
meaning given in the Native Title Act section 253;
registered native title claim means a claim
(within the meaning of the Native Title Act section 184) details of which are
contained in the Register of Native Title Claims;
registered native title claimant has the meaning
given in the Native Title Act section 253;
Register of Native Title Claims has the meaning
given in the Native Title Act section 253;
settlement ILUA means —
(a) a
settlement ILUA within the meaning of the Land Administration (South West
Native Title Settlement) Act 2016 section 3; or
(b) the
ILUA named the Yamatji Nation Indigenous Land Use Agreement registered on 30
July 2020; or
(c)
another prescribed ILUA under which native title rights and interests have
been surrendered.
(1) For the purposes
of this section, the expression the owner of any land includes a lessee from
the Crown, and the holder of any mining tenement or mining privilege, or of
any right or privilege under the
Petroleum and Geothermal Energy Resources Act 1967 , in relation to the land.
(1a) A person is also
included as an owner of land for the purposes of this section if —
(a) the
person —
(i)
is the holder of rights conferred under section 34 of the
Dampier to Bunbury Pipeline Act 1997 in respect of the land or is the
holder’s nominee approved under section 34(3) of that Act; or
(ii)
has authority under section 7 of the Petroleum Pipelines
Act 1969 to enter upon the land;
or
(b) the
person is the holder of a distribution licence under Part 2A of the
Energy Coordination Act 1994 as a result of which the person has rights or
powers in respect of the land; or
(c) the
person is the holder of a licence under the Water Services Act 2012 as a
result of which the person has rights or powers in respect of the land.
(2) Where the owner of
any land gives to the Committee notice in writing that he requires to use the
land for a purpose which, unless the Minister gives his consent under this
section, would be likely to result in a breach of section 17 in respect of any
Aboriginal site that might be on the land, the Committee must form an opinion
as to whether there is any Aboriginal site on the land, evaluate the
importance and significance of any such site, and submit the notice to the
Minister together with its recommendation in writing as to whether or not the
Minister should consent to the use of the land for that purpose, and, where
applicable, the extent to which and the conditions upon which his consent
should be given.
(3) Where the
Committee submits a notice to the Minister under subsection (2) he shall
consider its recommendation and having regard to the general interest of the
community shall either —
(a)
consent to the use of the land the subject of the notice, or a specified part
of the land, for the purpose required, subject to such conditions, if any, as
he may specify; or
(b)
wholly decline to consent to the use of the land the subject of the notice for
the purpose required,
and shall forthwith
inform the owner in writing of his decision.
(3A) As soon as
practicable after making a decision under subsection (3) or (6A), the Minister
must publish notice of the decision on a website maintained by, or on behalf
of, the Department.
(4) Where the owner of
any land has given to the Committee notice pursuant to subsection (2) and the
Committee has not submitted it with its recommendation to the Minister in
accordance with that subsection the Minister may require the Committee to do
so within a specified time, or may require the Committee to take such other
action as the Minister considers necessary in order to expedite the matter,
and the Committee shall comply with any such requirement.
(5) Where the owner of
any land, or a native title party in relation to land, is aggrieved by a
decision of the Minister made under subsection (3) or (6A) in relation to the
land, the owner or native title party may apply to the State Administrative
Tribunal for a review of the decision.
(5A) A provision of a
contract or other agreement (whether entered into before, on or after 23
December 2021) that would otherwise prohibit or have the effect of prohibiting
a native title party in relation to land, or a person who is a member of such
a native title party, from doing any of the following is of no effect —
(a)
making an application under subsection (5) in relation to the land;
(b)
commencing or being heard in proceedings before a court or tribunal in
relation to a matter arising under or in relation to this section in relation
to the land;
(c)
being heard or making submissions in relation to the performance of a function
under this section in relation to the land.
(6) A consent given
under subsection (3)(a), whether given before, on or after 23 December 2021,
is subject to whichever of the following conditions is applicable —
(a) if
the consent was given in relation to a notice under subsection (2) that was
given to the Committee referred to in section 72(1) before 23 December 2021
— the condition is that an owner of the land the subject of the consent
must, in accordance with the regulations (if any), notify the Minister if the
owner becomes aware, on or after 1 July 2023, of any new information about an
Aboriginal site on the land the subject of the consent;
(b) if
the consent was given in relation to a notice under subsection (2) that was
given to the Committee referred to in section 72(1) on or after 23 December
2021 but before 1 July 2023 — the condition is that an owner of the land
the subject of the consent must, in accordance with the regulations (if any),
notify the Minister if the owner becomes aware, on or after 23 December 2021,
of any new information about an Aboriginal site on the land the subject of the
consent;
(c)
otherwise — the condition is that an owner of the land the subject of
the consent must, in accordance with the regulations (if any), notify the
Minister if the owner becomes aware, on or after the day on which the consent
is given, of any new information about an Aboriginal site on the land the
subject of the consent.
(6A) If, in relation
to a consent given under subsection (3)(a), the Minister becomes aware of new
information about an Aboriginal site, the Minister may, having regard to the
general interest of the community, do 1 of the following —
(a)
amend the consent by amending the conditions to which it is subject, imposing
new conditions or changing the specification of the land to which it relates;
(b)
revoke the consent;
(c)
revoke the consent and give a new consent;
(d)
confirm the consent.
(6B) However, if the
Minister becomes aware of the new information about an Aboriginal site because
of a notice given in accordance with a condition under subsection (6), the
Minister must make a decision under subsection (6A).
(6C) If the Minister
proposes to exercise a power under subsection (6A) in relation to a consent,
the Minister may suspend the consent in whole or in part. A suspension cannot
extend beyond when the exercise of the power under subsection (6A) has taken
effect.
(6D) A consent given
under subsection (6A)(c) —
(a) is
taken to have been given under subsection (3)(a); and
(b) is
subject to the condition in subsection (6)(c).
(7) Where the owner of
any land gives notice to the Committee under subsection (2), the Committee
may, if it is satisfied that it is practicable to do so, direct the removal of
any object to which this Act applies from the land to a place of safe custody.
(8) Where consent has
been given under subsection (3)(a) to use any land for a particular purpose
nothing done pursuant to, and in accordance with any conditions attached to,
the consent constitutes an offence against this Act.
(9) The regulations
may provide for —
(a)
procedural matters for the purposes of this section; and
(b)
timeframes for doing things under or for the purposes of this section, or for
performing functions under this section, including by —
(i)
prescribing time limits within which a thing required or
permitted to be done must be done; and
(ii)
prescribing time limits within which a function must be
performed; and
(iii)
providing for the extension of such time limits.
(10) Regulations under
subsection (9) may be made in relation to the jurisdiction of the State
Administrative Tribunal under subsection (5) and, to the extent necessary for
such regulations, the State Administrative Tribunal Act 2004 section 92 is
excluded.
[Section 18 inserted: No. 8 of 1980 s. 6; amended:
No. 24 of 1995 s. 19; No. 58 of 1999 s. 39; No. 55 of 2004 s. 5; No. 35 of
2007 s. 89; No. 25 of 2012 s. 203; No. 27 of 2021 s. 340; No. 23 of 2023
s. 14.]