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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97-98
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Native Title
Amendment Bill 1997
No. ,
1998
(Prime Minister)
A
Bill for an Act to amend the Native Title Act 1993, and for related
purposes
Contents
Native Title Act
1993 0644517921.html
Part 1—Native Title Act
1993 0644517921.html
Part 2—Federal Court of Australia Act
1976 0644517921.html
Part 3—Human Rights and Equal Opportunity Commission Act
1986 0644517921.html
Part 1—Initial
amendments 0644517921.html
Part 2—Later
amendments 0644517921.html
Native Title Act
1993 0644517921.html
Part 1—Contents of this
Schedule 0644517921.html
Part 2—Application of future act
amendments 0644517921.html
Part 3—Application of amendments relating to section 61 applications:
proceedings relating to
determinations 0644517921.html
Part 4—Application of amendments relating to section 61 applications:
registration of claims 0644517921.html
Part 5—Various application and transitional
provisions 0644517921.html
Part 6—Validation of certain
acts 0644517921.html
Part 6A—Compensation
etc. 0644517921.html
Part 7—Regulations 0644517921.html
Part 8—Interpretation 0644517921.html
A Bill for an Act to amend the Native Title Act
1993, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Native Title Amendment Act
1997.
(1) Sections 1, 2 and 3 commence on the day on which this Act receives the
Royal Assent.
(2) Subject to subsection (3), Part 1 of Schedule 3 commences on a day to
be fixed by Proclamation.
(3) If Part 1 of Schedule 3 does not commence within the period of 9
months beginning on the day on which this Act receives the Royal Assent, that
Part commences on the first day after the end of that period.
(4) Part 2 of Schedule 3 commences:
(a) on the first day after the end of the period of 12 months after the
commencement of Part 1 of Schedule 3; or
(b) if, before the end of that period, a later day is fixed by
Proclamation—on that later day.
(5) Subject to subsection (6), the remaining provisions of this Act
commence on a day or days to be fixed by Proclamation.
(6) If a provision referred to in subsection (5) does not commence within
the period of 9 months beginning on the day on which this Act receives the Royal
Assent, that provision commences on the first day after the end of that
period.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
1 Paragraph 3(d)
After “past acts”, insert “, and intermediate period
acts,”.
2 Section 4
Repeal the section, substitute:
Recognition and protection of native title
(1) This Act recognises and protects native title. It provides that native
title cannot be extinguished contrary to the Act.
Topics covered
(2) Essentially, this Act covers the following topics:
(a) acts affecting native title (see subsections (3) to (6));
(b) determining whether native title exists and compensation for acts
affecting native title (see subsection (7)).
Kinds of acts affecting native title
(3) There are basically 2 kinds of acts affecting native title:
(a) past acts (mainly acts done before this Act’s
commencement on 1 January 1994 that were invalid because of native title);
and
(b) future acts (mainly acts done after this Act’s
commencement that either validly affect native title or are invalid because of
native title).
Consequences of past acts and future acts
(4) For past acts and future acts, this Act deals with the following
matters:
(a) their validity;
(b) their effect on native title;
(c) compensation for the acts.
Intermediate period acts
(5) However, for certain acts (called intermediate period
acts) done mainly before the judgment of the High Court in Wik
Peoples v Queensland (1996) 187 CLR 1, that would be invalid because they
fail to pass any of the future act tests in Division 3 of Part 2, or for any
other reason because of native title, this Act provides for similar consequences
to past acts.
Confirmation of extinguishment of native title
(6) This Act also confirms that many acts done before the High
Court’s judgment, that were either valid, or have been validated under the
past act or intermediate period act provisions, will have extinguished native
title. If the acts are previous exclusive possession acts (see
section 23B), the extinguishment is complete; if the acts are previous
non-exclusive possession acts (see section 23F), the extinguishment is
to the extent of any inconsistency.
Role of Federal Court and National Native Title Tribunal
(7) This Act also:
(a) provides for the Federal Court to make determinations of native title
and compensation; and
(b) establishes a National Native Title Tribunal with power to:
(i) make determinations about whether certain future acts can be done and
whether certain agreements concerning native title are to be covered by the Act;
and
(ii) provide assistance or undertake mediation in other matters relating
to native title; and
(c) deals with other matters such as the keeping of registers and the role
of representative Aboriginal/Torres Strait Islander bodies.
3 Subsection 7(2)
After “past acts”, insert “or intermediate period
acts”.
4 Paragraph 11(2)(a)
Repeal the paragraph, substitute:
(a) in accordance with Division 2B (which deals with confirmation of past
extinguishment of native title) or Division 3 (which deals with future acts etc.
and native title) of Part 2; or
5 Paragraph 11(2)(b)
After “past acts”, insert “, or intermediate period
acts,”.
6 Division 2 of Part 2
(heading)
Repeal the heading, substitute:
7 Before Subdivision A of Division 2 of Part
2
Insert:
(1) In summary, this Division validates, or allows States and Territories
to validate, certain acts that:
(a) took place before 1 January 1994; and
(b) would otherwise be invalid because of native title.
This Division also covers certain acts done after that day consisting of an
extension or renewal etc. of an act done before that day.
(2) The acts validated are called past acts; they are
defined in section 228.
(3) This Division also sets out the effect of such validation on native
title. The effect varies depending on the nature of the act. For this purpose,
different categories of past act are defined by sections 229 to 232.
8 At the end of subsection
15(1)
Add:
Note: This subsection does not apply to the act if section
23C or 23G applies to the act.
9 Division 3 of Part 2
Repeal the Division, substitute:
(1) In summary, this Division validates, or allows States and Territories
to validate, certain acts that:
(a) took place on or after 1 January 1994 but on or before 23 December
1996; and
(b) would otherwise be invalid to any extent because they fail to pass any
of the future act tests in Division 3 of Part 2 or for any other reason because
of native title.
(2) The acts are called intermediate period acts; they are
defined in section 232A.
(3) For this validation to apply, before the act was done, there must have
been:
(a) a grant of a freehold estate or a lease (other than a mining lease);
or
(b) a public work;
over any of the land or waters concerned.
(4) The Division also sets out the effect of such validation on native
title. The effect varies depending on the nature of the act. For this purpose,
different categories of intermediate period act are defined by sections 232B to
232E.
(5) The structure of the Division is very similar to that of Division 2
(which deals with validation of past acts).
If an intermediate period act is an act attributable to the Commonwealth,
the act is valid, and is taken always to have been valid.
If an intermediate period act is an act attributable to the
Commonwealth:
(a) if it is a category A intermediate period act to which subsection
232B(2), (3) or (4) (which deal with things such as the grant or vesting of
freehold estates and certain leases) applies—the act extinguishes all
native title in relation to the land or waters concerned; and
(b) if it is a category A intermediate period act to which subsection
232B(7) (which deals with public works) applies:
(i) the act extinguishes the native title in relation to the land or
waters on which the public work concerned (on completion of its construction or
establishment) was or is situated; and
(ii) the extinguishment is taken to have happened when the construction or
establishment began; and
(c) if it is a category B intermediate period act that is wholly or partly
inconsistent with the continued existence, enjoyment or exercise of the native
title rights and interests concerned—the act extinguishes the native title
to the extent of the inconsistency; and
(d) if it is a category C intermediate period act or a category D
intermediate period act—the non-extinguishment principle applies to the
act.
Note: This section does not apply to the act if section 23C
or 23G applies to the act.
If:
(a) an intermediate period act attributable to the Commonwealth contains a
reservation or condition for the benefit of Aboriginal peoples or Torres Strait
Islanders; or
(b) the doing of an intermediate period act attributable to the
Commonwealth would affect rights or interests (other than native title rights
and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising
under legislation, at common law or in equity and whether or not rights of
usage);
nothing in section 22B affects that reservation or condition or those
rights or interests.
(1) If an intermediate period act is an act attributable to the
Commonwealth, the native title holders are entitled to compensation for the
act.
Who pays compensation
(2) The compensation is payable by the Commonwealth.
Section applies if acquisition of property other than on just
terms
(1) This section applies if the invalidity (disregarding section 22A) of
an intermediate period act attributable to the Commonwealth results from a
paragraph 51(xxxi) acquisition of property by the Commonwealth from any person
having been made otherwise than on paragraph 51(xxxi) just terms.
Entitlement to compensation
(2) The person is entitled to compensation from the Commonwealth for the
acquisition in accordance with Division 5 and, if that compensation does not
ensure that the acquisition is made on paragraph 51(xxxi) just terms, to such
additional compensation from the Commonwealth as is necessary to ensure that it
is.
(1) If:
(a) an act that is attributable to the Commonwealth consists of:
(i) the creation of a right to mine; or
(ii) the variation of such a right to extend the area to which it relates;
or
(iii) the extension of the period for which such a right has effect, other
than under an option or right of extension or renewal created by the lease,
contract or other thing whose grant or making created the right to mine;
and
(b) the act took place at any time during the period from the beginning of
1 January 1994 until the end of 23 December 1996; and
(c) at any time before the act was done, either:
(i) a grant of a freehold estate or a lease was made covering any of the
land or waters affected by the act; or
(ii) a public work was constructed or established on any of the land or
waters affected by the act;
the Commonwealth must, before the end of 6 months after this section
commences:
(d) give notice containing the details set out in subsection (2) to any
registered native title body corporate, any registered native title claimant and
any representative Aboriginal/Torres Strait Islander body, in relation to any of
the land or waters affected by the act; and
(e) notify the public in the determined way of the details set out in
subsection (2).
Details
(2) The details are:
(a) the date on which the act was done; and
(b) the kind of mining involved; and
(c) sufficient information to enable the area affected by the act to be
identified; and
(d) information about the way in which further details about the act may
be obtained.
If a law of a State or Territory contains provisions to the same effect
as sections 22B and 22C, the law of the State or Territory may provide that
intermediate period acts attributable to the State or Territory are valid, and
are taken always to have been valid.
Compensation where validation
(1) If a law of a State or Territory validates an intermediate period act
attributable to the State or Territory in accordance with section 22F, the
native title holders are entitled to compensation.
Recovery of compensation
(2) The native title holders may recover the compensation from the State
or Territory.
States or Territories may create compensation entitlement
(3) This section does not prevent a law of a State or Territory from
creating an entitlement to compensation for an intermediate period act or for
the validation of an intermediate period act.
Note: Paragraph 49(b) deals with the situation where there
are multiple rights to compensation under Commonwealth, State and Territory
laws.
(1) If:
(a) an act that is attributable to a State or Territory consists
of:
(i) the creation of a right to mine; or
(ii) the variation of such a right to extend the area to which it relates;
or
(iii) the extension of the period for which such a right has effect, other
than under an option or right of extension or renewal created by the lease,
contract or other thing whose grant or making created the right to mine;
and
(b) the act took place at any time during the period from the beginning of
1 January 1994 until the end of 23 December 1996; and
(c) at any time before the act was done, either:
(i) a grant of a freehold estate or a lease was made covering any of the
land or waters affected by the act; or
(ii) a public work was constructed or established on any of the land or
waters affected by the act;
the State or Territory must, before the end of 6 months after the
commencement of the law of the State or Territory that validates intermediate
period acts attributable to the State or Territory in accordance with section
22F:
(d) give notice containing the details set out in subsection (2) to any
registered native title body corporate, any registered native title claimant and
any representative Aboriginal/Torres Strait Islander body, in relation to any of
the land or waters affected by the act; and
(e) notify the public in the determined way of the details set out in
subsection (2).
Details
(2) The details are:
(a) the date on which the act was done; and
(b) the kind of mining involved; and
(c) sufficient information to enable the area affected by the act to be
identified; and
(d) information about the way in which further details about the act may
be obtained.
(1) In summary, this Division provides that certain acts attributable to
the Commonwealth that were done on or before 23 December 1996 will have
completely or partially extinguished native title.
(2) If the acts were previous exclusive possession acts
(involving the grant or vesting of things such as freehold estates or leases
that conferred exclusive possession, or the construction or establishment of
public works), the acts will have completely extinguished native
title.
(3) If the acts were previous non-exclusive possession acts
(involving grants of non-exclusive agricultural leases or non-exclusive
pastoral leases), they will have extinguished native title to the extent of any
inconsistency.
(4) This Division also allows States and Territories to legislate, in
respect of certain acts attributable to them, to extinguish native title in the
same way as is done under this Division for Commonwealth acts.
(1) This section defines previous exclusive possession
act.
Grant of freehold estates or certain leases etc. on or before
23.12.1996
(2) An act is a previous exclusive possession act
if:
(a) it is valid (including because of Division 2 or 2A of Part 2);
and
Note: As at the commencement of this section, acts such as
grants before 1 January 1994 that were invalid because of native title have been
validated by or under Division 2.
(b) it took place on or before 23 December 1996; and
(c) it consists of the grant or vesting of any of the following:
(i) a Scheduled interest (see section 249C);
(ii) a freehold estate;
(iii) a commercial lease that is neither an agricultural lease nor a
pastoral lease;
(iv) an exclusive agricultural lease (see section 247A) or an exclusive
pastoral lease (see section 248A);
(v) a residential lease;
(vi) a community purposes lease (see section 249A);
(vii) what is taken by subsection 245(3) (which deals with the dissection
of mining leases into certain other leases) to be a separate lease in respect of
land or waters mentioned in paragraph (a) of that subsection, assuming that the
reference in subsection 245(2) to “1 January 1994” were instead a
reference to “24 December 1996”;
(viii) any lease (other than a mining lease) that confers a right of
exclusive possession over particular land or waters.
Vesting of certain land or waters to be covered by paragraph
(2)(c)
(3) If:
(a) by or under legislation of a State or a Territory, particular land or
waters are vested in any person; and
(b) a right of exclusive possession of the land or waters is expressly or
impliedly conferred on the person by or under the legislation;
the vesting is taken for the purposes of paragraph (2)(c) to be the vesting
of a freehold estate over the land or waters.
Construction of public works commencing on or before
23.12.1996
(7) An act is a previous exclusive possession act
if:
(a) it is valid (including because of Division 2 or 2A); and
(b) it consists of the construction or establishment of any public work
that commenced to be constructed or established on or before 23 December
1996.
Exclusion of acts benefiting Aboriginal peoples etc.
(9) An act is not a previous exclusive possession act if it
is the grant or vesting of any thing that is made or done by or under
legislation that makes provision for the grant or vesting of such things only
to, in or for the benefit of, Aboriginal peoples or Torres Strait
Islanders.
Exclusion by regulation
(10) The regulations may provide that an act is not a previous
exclusive possession act.
Acts other than public works
(1) If an act is a previous exclusive possession act under subsection
23B(2) (including because of subsection 23B(3)) and is attributable to the
Commonwealth:
(a) the act extinguishes any native title in relation to the land or
waters covered by the freehold estate, Scheduled interest or lease concerned;
and
(b) the extinguishment is taken to have happened when the act was
done.
Public works
(2) If an act is a previous exclusive possession act under subsection
23B(7) (which deals with public works) and is attributable to the
Commonwealth:
(a) the act extinguishes native title in relation to the land or waters on
which the public work concerned (on completion of its construction or
establishment) was or is situated; and
(b) the extinguishment is taken to have happened when the construction or
establishment of the public work began.
Other extinguishment provisions do not apply
(3) If this section applies to the act, sections 15 and 22B do not apply
to the act.
If:
(a) a previous exclusive possession act attributable to the Commonwealth
contains a reservation or condition for the benefit of Aboriginal peoples or
Torres Strait Islanders; or
(b) the doing of a previous exclusive possession act attributable to the
Commonwealth would affect rights or interests (other than native title rights
and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising
under legislation, at common law or in equity and whether or not rights of
usage);
nothing in section 23C affects that reservation or condition or those
rights or interests.
If a law of a State or Territory contains a provision to the same effect
as section 23D, the law of the State or Territory may make provision to the same
effect as section 23C in respect of all or any previous exclusive possession
acts attributable to the State or Territory.
(1) This section defines previous non-exclusive possession
act.
Acts on or before 23.12.96
(2) An act is a previous non-exclusive possession act
if:
(a) it is valid (including because of Division 2 or 2A of Part 2);
and
Note: As at the commencement of this section, acts such as
grants before 1 January 1994 that were invalid because of native title have been
validated by or under Division 2.
(b) it takes place on or before 23 December 1996; and
(c) it consists of the grant of a non-exclusive agricultural lease (see
section 247B) or a non-exclusive pastoral lease (see section
248B).
Acts after 23.12.96
(3) An act is also a previous non-exclusive possession act
if:
(a) it takes place after 23 December 1996; and
(b) it would be a previous non-exclusive possession act under subsection
(2) if that subsection were not limited in its application to acts taking place
on or before 23 December 1996; and
(c) it takes place:
(i) in exercise of a legally enforceable right created by any act done on
or before 23 December 1996; or
(ii) in good faith in giving effect to, or otherwise because of, an offer,
commitment, arrangement or undertaking made or given in good faith on or before
23 December 1996, and of which there is written evidence created at or about the
time the offer, commitment, arrangement or undertaking was made.
Exclusion by regulation
(4) The regulations may provide that an act is not a previous
non-exclusive possession act.
(1) Subject to subsection (2), if a previous non-exclusive possession act
(see section 23F) is attributable to the Commonwealth:
(a) the act extinguishes any native title rights and interests in relation
to the land or waters covered by the lease concerned to the extent that the act
involves the grant of rights and interests that are inconsistent with the native
title rights and interests; and
(b) any native title rights and interests in relation to the land or
waters covered by the lease concerned are extinguished to the extent that they
confer possession, occupation, use and enjoyment of the land or waters to the
exclusion of all others; and
(c) the extinguishment is taken to have happened when the act was done;
and
(d) to the extent that the act involves the grant of rights and interests
that are not inconsistent with native title rights and interests in relation to
the land or waters covered by the lease concerned, the rights and interests
granted, and the doing of any activity in giving effect to them, prevail over
the native title rights and interests but do not extinguish them.
Exclusion of certain acts
(2) If the act is the grant of a pastoral lease or an agricultural lease
to which paragraph 15(1)(a) applies, this section does not apply to the
act.
Effect on sections 15 and 22B
(3) If this section applies to the act, sections 15 and 22B do not apply
to the act.
If:
(a) a previous non-exclusive possession act attributable to the
Commonwealth contains a reservation or condition for the benefit of Aboriginal
peoples or Torres Strait Islanders; or
(b) the doing of a previous non-exclusive possession act attributable to
the Commonwealth would affect rights or interests (other than native title
rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether
arising under legislation, at common law or in equity and whether or not rights
of usage);
nothing in section 23G affects that reservation or condition or those
rights or interests.
In the case of a previous non-exclusive possession act to which
subparagraph 23F(3)(c)(ii) applies:
(a) notice must be given, in the way determined in writing by the
Commonwealth Minister, to any representative Aboriginal/Torres Strait Islander
bodies, registered native title bodies corporate and registered native title
claimants in relation to the land or waters that will be affected by the act
about the doing or proposed doing of the act, or acts of that class, in relation
to the land or waters concerned; and
(b) they must be given an opportunity to comment on the act or class of
acts.
If a law of a State or Territory contains provisions to the same effect
as sections 23H and 23HA, the law of the State or Territory may make provision
to the same effect as section 23G in respect of all or any previous
non-exclusive possession acts attributable to the State or Territory.
Entitlement
(1) The native title holders are entitled to compensation in accordance
with Division 5 for any extinguishment under this Division of their native title
rights and interests by an act, but only to the extent (if any) that the native
title rights and interests were not extinguished otherwise than under this
Act.
Commonwealth acts
(2) If the act is attributable to the Commonwealth, the compensation is
payable by the Commonwealth.
State and Territory acts
(3) If the act is attributable to a State or Territory, the compensation
is payable by the State or Territory.
Future acts
(1) This Division deals mainly with future acts, which are defined in
section 233. Acts that do not affect native title are not future
acts; therefore this Division does not deal with them (see section 227
for the meaning of acts that affect native title).
Validity of future acts
(2) Basically, this Division provides that, to the extent that a future
act affects native title, it will be valid if covered by certain provisions of
the Division, and invalid if not.
Validity under indigenous land use agreements
(3) A future act will be valid if the parties to certain agreements
(called indigenous land use agreements—see Subdivisions B, C and D)
consent to the act being done.
Other bases for validity
(4) A future act will also be valid to the extent covered by any of the
following:
(a) section 24FA (future acts where procedures indicate absence of native
title);
(b) section 24GB (acts permitting primary production on non-exclusive
agricultural or pastoral leases);
(c) section 24GD (acts permitting off-farm activities directly connected
to primary production activities);
(d) section 24GE (granting rights to third parties etc. on non-exclusive
agricultural or pastoral leases);
(e) section 24HA (management of water and airspace);
(f) section 24IA (acts involving renewals and extensions etc. of
acts);
(g) section 24JA (acts involving reservations, leases etc.);
(h) section 24KA (acts involving facilities for services to the
public);
(i) section 24LA (low impact future acts);
(j) section 24MD (acts that pass the freehold test—but see
subsection (5));
(k) section 24NA (acts affecting offshore places).
Right to negotiate
(5) In the case of certain acts covered by section 24MD (acts that pass
the freehold test), for the acts to be valid it is also necessary to satisfy the
requirements of Subdivision P (which provides a “right to
negotiate”).
Extinguishment/non-extinguishment; procedural rights and
compensation
(6) This Division provides that, in general, valid future acts are subject
to the non-extinguishment principle. The Division also deals with procedural
rights and compensation for the acts.
Activities etc. prevail over native title
(7) To avoid doubt, section 44H provides that a valid lease, licence,
permit or authority, and any activity done under it, prevail over any native
title rights and interests and their exercise.
Statutory access rights
(8) This Division confers access rights in respect of non-exclusive
agricultural and non-exclusive pastoral leases on certain persons covered by
registered native title claims (see Subdivision Q).
Indigenous land use agreement provisions
(1) To the extent that a future act is covered by section 24EB (which
deals with the effect of indigenous land use agreements on future acts), it is
not covered by any of the sections listed in paragraphs 24AA(4)(a) to
(k).
Other provisions
(2) To the extent that a future act is covered by a particular section in
the list in paragraphs 24AA(4)(a) to (k), it is not covered by a section that is
lower in the list.
Note: It is important to know under which particular
provision a future act is valid because the consequences in terms of
compensation and procedural rights may be different.
The regulations may impose requirements to notify persons of acts, or
classes of acts, that are to any extent valid under this Division (whether such
notice is required to be given before or after the acts are done).
An agreement meeting the requirements of sections 24BB to 24BE is an
indigenous land use agreement.
Note: Subdivisions C and D provide for other kinds of
indigenous land use agreements.
The agreement must be about one or more of the following matters in
relation to an area:
(a) the doing, or the doing subject to conditions (which may be about
procedural matters), of particular future acts, or future acts included in
classes;
(b) withdrawing, amending, varying or doing any other thing in relation to
an application under Division 1 of Part 3 in relation to land or waters in the
area;
(c) the relationship between native title rights and interests and other
rights and interests in relation to the area;
(d) the manner of exercise of any native title rights and interests or
other rights and interests in relation to the area;
(e) extinguishing native title rights and interests in relation to land or
waters in the area by the surrender of those rights and interests to the
Commonwealth, a State or a Territory;
(f) any other matter concerning native title rights and interests in
relation to the area.
Note 1: If the agreement involves consent to the doing of a
future act or class of future act, or the doing of a future act or class of
future act subject to conditions, it must include a statement to that effect:
see paragraph 24EB(1)(b).
Note 2: If a future act covered by such a statement would
otherwise be subject to the “right to negotiate” provisions in
Subdivision P, the agreement must also include a statement that those provisions
are not intended to apply: see paragraph 24EB(1)(c).
Note 3: If the agreement involves the extinguishment of
native title by surrender, it must include a statement to that effect: see
paragraph 24EB(1)(d).
The agreement must not be made unless there are registered native title
bodies corporate in relation to all of the area.
Registered native title bodies corporate
(1) All of the registered native title bodies corporate in relation to the
area must be parties to the agreement.
Governments
(2) If the agreement makes provision for the extinguishment of native
title rights and interests by surrendering them to the Commonwealth, a State or
a Territory as mentioned in paragraph 24BB(e), the Commonwealth, State or
Territory must be a party to the agreement. If the agreement does not make such
provision, the Commonwealth, a State or a Territory may still be a
party.
Others
(3) Any other person or persons may be parties.
(1) The agreement may be given for any consideration, and subject to any
conditions, agreed by the parties (other than consideration or conditions that
contravene any law).
Consideration may be freehold grant or other interests
(2) Without limiting subsection (1), the consideration may be the grant of
a freehold estate in any land, or any other interests in relation to land
whether statutory or otherwise.
Persons wishing to make the agreement may request assistance from the
NNTT or a recognised State/Territory body in negotiating the
agreement.
Application
(1) Any party to the agreement may, if all of the other parties agree,
apply in writing to the Registrar for the agreement to be registered on the
Register of Indigenous Land Use Agreements.
Things accompanying application
(2) The application must be accompanied by a copy of the agreement and any
other prescribed documents or information.
(1) The Registrar must:
(a) give notice of the agreement, in accordance with subsection (2), to
any of the following who are not parties to the agreement:
(i) the Commonwealth Minister;
(ii) if the agreement covers an area within the jurisdictional limits of a
State or Territory—the State Minister or the Territory Minister for the
State or Territory;
(iii) any representative Aboriginal/Torres Strait Islander body for the
area covered by the agreement;
(iv) any local government body for the area covered by the
agreement;
(v) any other person whom the Registrar, having regard to the nature of
the agreement, considers appropriate; and
(b) notify the public in the determined way of the agreement in accordance
with subsection (2).
Content of notice
(2) The notice under paragraph (1)(a) or (b) must:
(a) describe the area covered by the agreement; and
(b) state the name of each party to the agreement and the address at which
the party can be contacted; and
(c) set out any statements included in the agreement that are of a kind
mentioned in paragraph 24EB(1)(b), (c) or (d).
Unless any of the parties to the agreement advises the Registrar, within
1 month after the Registrar gives notice under section 24BH, that the party does
not wish the agreement to be registered on the Register of Indigenous Land Use
Agreements, the Registrar must register the agreement on that
Register.
An agreement meeting the requirements of sections 24CB to 24CE is an
indigenous land use agreement.
Note: Subdivisions B and D provide for other kinds of
indigenous land use agreements.
The agreement must be about one or more of the following matters in
relation to an area:
(a) the doing, or the doing subject to conditions (which may be about
procedural matters), of particular future acts, or future acts included in
classes;
(b) withdrawing, amending, varying or doing any other thing in relation to
an application under Division 1 of Part 3 in relation to land or waters in the
area;
(c) the relationship between native title rights and interests and other
rights and interests in relation to the area;
(d) the manner of exercise of any native title rights and interests or
other rights and interests in relation to the area;
(e) extinguishing native title rights and interests in relation to land or
waters in the area by the surrender of those rights and interests to the
Commonwealth, a State or a Territory;
(f) any other matter concerning native title rights and interests in
relation to the area;
(g) any matter concerning rights conferred by Subdivision Q (which gives
certain persons covered by registered native title claims rights of access to
non-exclusive agricultural and pastoral leases).
Note 1: If the agreement involves consent to the doing of a
future act or class of future act, or the doing of a future act or class of
future act subject to conditions, it must include a statement to that effect:
see paragraph 24EB(1)(b).
Note 2: If a future act covered by such a statement would
otherwise be subject to the “right to negotiate” provisions in
Subdivision P, the agreement must also include a statement that those provisions
are not intended to apply: see paragraph 24EB(1)(c).
Note 3: If the agreement involves the extinguishment of
native title by surrender, it must include a statement to that effect: see
paragraph 24EB(1)(d).
The agreement must not be made if there are registered native title
bodies corporate in relation to all of the area.
Note: If there are registered native title bodies corporate
for all of the area, an agreement under Subdivision B may be
made.
Native title group to be parties
(1) All persons in the native title group (see subsection (2) or (3)) in
relation to the area must be parties to the agreement.
Native title group where registered claimant or body
corporate
(2) If there is a registered native title claimant, or a registered native
title body corporate, in relation to any of the land or waters in the area, the
native title group consists of:
(a) all registered native title claimants in relation to land or waters in
the area; and
Note 1: Registered native title claimants are persons whose
names appear on the Register of Native Title Claims as applicants in relation to
claims to hold native title: see the definition of registered native title
claimant in section 253.
Note 2: The agreement will bind all members of the native
title claim group concerned: see paragraph 24EA(1)(b).
(b) all registered native title bodies corporate in relation to land or
waters in the area.
Native title group where no registered claimant or body
corporate
(3) If subsection (2) does not apply, the native title group
consists of one or more of the following:
(a) any person who claims to hold native title in relation to land or
waters in the area;
(b) any representative Aboriginal/Torres Strait Islander body for the
area.
Other native title parties
(4) If the native title group is covered by subsection (2), one or more of
the following may also be parties to the agreement:
(a) any other person who claims to hold native title in relation to land
or waters in the area;
(b) any representative Aboriginal/Torres Strait Islander body for the
area.
Government parties
(5) If the agreement makes provision for the extinguishment of native
title rights and interests by surrendering them to the Commonwealth, a State or
Territory as mentioned in paragraph 24CB(e), the Commonwealth, State or
Territory must be a party to the agreement. If the agreement does not make such
provision, the Commonwealth, a State or a Territory may still be a
party.
Other parties
(6) Any other person may be a party to the agreement.
(1) The agreement may be given for any consideration, and subject to any
conditions, agreed by the parties (other than consideration or conditions that
contravene any law).
Consideration may be freehold grant or other interests
(2) Without limiting subsection (1), the consideration may be the grant of
a freehold estate in any land, or any other interests in relation to land
whether statutory or otherwise.
Persons wishing to make the agreement may request assistance from the
NNTT or a recognised State/Territory body in negotiating the
agreement.
Application
(1) Any party to the agreement may, if all of the other parties agree,
apply in writing to the Registrar for the agreement to be registered on the
Register of Indigenous Land Use Agreements.
Things accompanying application
(2) The application must be accompanied by a copy of the agreement and any
other prescribed documents or information.
Certificate or statement to accompany application in certain
cases
(3) Also, the application must either:
(a) have been certified by all representative Aboriginal/Torres Strait
Islander bodies for the area in performing their functions under paragraph
202(4)(e) in relation to the area; or
(b) include a statement to the effect that the following requirements have
been met:
(i) all reasonable efforts have been made (including by consulting all
representative Aboriginal/Torres Strait Islander bodies for the area) to ensure
that all persons who hold or may hold native title in relation to land or waters
in the area covered by the agreement have been identified;
(ii) all of the persons so identified have authorised the making of the
agreement;
Note: The word authorise is defined in section
251A.
together with a further statement briefly setting out the grounds on
which the Registrar should be satisfied that the requirements are met.
(1) The Registrar must:
(a) give notice of the agreement, in accordance with subsection (2), to
any of the following who are not parties to the agreement:
(i) the Commonwealth Minister;
(ii) if the agreement covers an area within the jurisdictional limits of a
State or Territory—the State Minister or the Territory Minister for the
State or Territory;
(iii) any representative Aboriginal/Torres Strait Islander body for the
area covered by the agreement;
(iv) any local government body for the area covered by the
agreement;
(v) any other person whom the Registrar, having regard to the nature of
the agreement, considers appropriate; and
(b) notify the public in the determined way of the agreement in accordance
with subsection (2).
Content of notice
(2) The notice under paragraph (1)(a) or (b) must:
(a) describe the area covered by the agreement; and
(b) state the name of each party to the agreement and the address at which
the party can be contacted; and
(c) set out any statements included in the agreement that are of a kind
mentioned in paragraph 24EB(1)(b),(c) or (d); and
(d) include a statement that, within the period (the notice
period) of 3 months after the notification day (see subsection
(3)):
(i) if the application was certified by representative Aboriginal/Torres
Strait Islander bodies for the area (see paragraph 24CG(3)(a))—any person
claiming to hold native title in relation to any of the land or waters in the
area covered by the agreement may object, in writing to the Registrar, against
registration of the agreement on the ground that the requirements of paragraphs
202(8)(a) and (b) were not satisfied in relation to the certification;
or
(ii) if the application contained a statement as mentioned in paragraph
24CG(3)(b) to the effect that certain requirements have been met (in summary,
relating to identifying native title holders and ensuring that they have
authorised the making of the agreement)—any person claiming to hold native
title in relation to land or waters in the area covered by the agreement may
wish, in response to the notice, to make a native title determination
application or equivalent application under a law of a State or
Territory.
Notice to specify day
(3) The notice under paragraph (1)(a) or (b) must specify a day as the
notification day for the agreement. Each such notice in relation
to the agreement must specify the same day.
Which days may be specified
(4) That day must be a day by which, in the Registrar’s opinion, it
is reasonable to assume that all notices under paragraph (1)(a) or (b) in
relation to the agreement will have been received by, or will otherwise have
come to the attention of, the persons who must be notified under those
paragraphs.
Making objections
(1) If the application was certified by representative Aboriginal/Torres
Strait Islander bodies for the area (see paragraph 24CG(3)(a)), any person
claiming to hold native title in relation to any of the land or waters in the
area covered by the agreement may object, in writing to the Registrar, against
registration of the agreement on the ground that the requirements of paragraphs
202(8)(a) and (b) were not satisfied in relation to the certification.
Assistance in withdrawing objection
(2) If an objection is made within the notice period, the parties to the
agreement may request assistance from the NNTT or a recognised State/Territory
body in negotiating with the person making the objection with a view to having
the objection withdrawn.
The Registrar must, after the end of the notice period, decide whether or
not to register an agreement covered by an application under this Subdivision on
the Register of Indigenous Land Use Agreements. However, in a case where section
24CL is to be applied, the Registrar must not do so until all persons covered by
paragraph (2)(b) of that section are known.
Registration only if conditions satisfied
(1) If the application for registration of the agreement was certified by
representative Aboriginal/Torres Strait Islander bodies for the area (see
paragraph 24CG(3)(a)) and the conditions in this section are satisfied, the
Registrar must register the agreement. If the conditions are not satisfied, the
Registrar must not register the agreement.
First condition
(2) The first condition is that:
(a) no objection under section 24CI against registration of the agreement
was made within the notice period; or
(b) one or more objections under section 24CI against registration of the
agreement were made within the notice period, but they have all been withdrawn;
or
(c) one or more objections under section 24CI against registration of the
agreement were made within the notice period, all of them have not been
withdrawn, but none of the persons making them has satisfied the Registrar that
the requirements of paragraphs 202(8)(a) and (b) were not satisfied in relation
to the certification of the application by any of the representative
Aboriginal/Torres Strait Islander bodies concerned.
Second condition
(3) The second condition is that if, when the Registrar proposes to
register the agreement, there is a registered native title body corporate in
relation to any land or waters in the area covered by the agreement, that body
corporate is a party to the agreement.
Matters to be taken into account
(4) In deciding whether he or she is satisfied as mentioned in paragraph
(2)(c), the Registrar must take into account any information given in relation
to the matter by:
(a) the persons making the objections mentioned in that paragraph;
and
(b) the representative Aboriginal/Torres Strait Islander bodies that
certified the application;
and may, but need not, take into account any other matter or
thing.
Registration only if conditions satisfied
(1) If the application for registration of the agreement contained a
statement as mentioned in paragraph 24CG(3)(b) to the effect that certain
requirements have been met (in summary, relating to identifying native title
holders and ensuring that they have authorised the making of the agreement), and
the conditions in subsections (2) and (3) of this section are satisfied, the
Registrar must register the agreement. If the conditions are not satisfied, the
Registrar must not register the agreement.
First condition
(2) The first condition is that the following persons are parties to the
agreement:
(a) any person who is, at the end of the notice period, a registered
native title claimant or a registered native title body corporate in relation to
any of the land or waters in the area covered by the agreement; and
(b) any person who, after the end of the notice period, becomes a
registered native title claimant in relation to any of the land or waters in the
area covered by the agreement, where the application containing the claim was
made before the end of the notice period and:
(i) the claim is accepted by the Registrar for registration under
subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy
conditions equivalent to those set out in sections 190B and 190C under a law of
a State or Territory; or
(ii) the claim is accepted by the Registrar for registration as a result
of an application under subsection 190D(2), where the application was made not
more than 28 days after the notice under subsection 190D(1) was given;
or
(iii) the claim is found to satisfy conditions equivalent to those set out
in sections 190B and 190C under a provision of a law of a State or Territory to
similar effect as section 190D, and the application under that provision was
made within a time period corresponding to that set out in subparagraph (ii) of
this paragraph.
Second condition
(3) The second condition is that the Registrar considers that the
requirements in paragraph 24CG(3)(b) (in summary, relating to identifying native
title holders and ensuring that they have authorised the making of the
agreement) have been met.
Matters to be taken into account
(4) In deciding whether the requirements have been met, the Registrar must
take into account:
(a) the statements in the application; and
(b) any information the Registrar is given on the matter by any
representative Aboriginal/Torres Strait Islander body or by any other body or
person;
and may, but need not, take into account any other matter or
thing.
An agreement meeting the requirements of sections 24DB to 24DF is an
indigenous land use agreement.
Note: Subdivisions B and C provide for other kinds of
indigenous land use agreements.
The agreement must be about one or more of the following matters in
relation to an area:
(a) the doing, or the doing subject to conditions (which may be about
procedural matters), of particular future acts, or future acts included in
classes;
(b) withdrawing, amending, varying or doing any other thing in relation to
an application under Division 1 of Part 3 in relation to land or waters in the
area;
(c) the relationship between native title rights and interests and other
rights and interests in relation to the area;
(d) the manner of exercise of any native title rights and interests or
other rights and interests in relation to the area;
(e) providing a framework for the making of other agreements about matters
relating to native title rights and interests;
(f) any other matter concerning native title rights and interests in
relation to the area;
(g) any matter concerning rights conferred by Subdivision Q (which gives
certain persons covered by registered native title claims rights of access to
non-exclusive agricultural and pastoral leases).
Note 1: If the agreement involves consent to the doing of a
future act or class of future act, or the doing of a future act or class of
future act subject to conditions, it must include a statement to that effect:
see paragraph 24EB(1)(b).
Note 2: If a future act covered by such a statement would
otherwise be subject to the “right to negotiate” provisions in
Subdivision P, the agreement must also include a statement that those provisions
are not intended to apply: see paragraph 24EB(1)(c).
The agreement must not provide for the extinguishment of any native title
rights or interests.
Note: The non-extinguishment principle will apply to any
future acts consented to in the agreement: see subsection
24EB(3).
No bodies corporate for whole of area
(1) The agreement must not be made if there are registered native title
bodies corporate in relation to all of the land and waters in the
area.
Note: If there are registered native title bodies corporate
for all of the area, an agreement under Subdivision B may be
made.
Body corporate or representative body for area
(2) There must be at least one registered native title body corporate in
relation to land or waters in the area or at least one representative
Aboriginal/Torres Strait Islander body for the area.
Native title group and relevant governments to be parties
(1) All persons in the native title group (see subsection (2)) in relation
to the area must be parties to the agreement, as must every relevant government
(see subsection (3)).
Native title group
(2) The native title group consists of:
(a) all registered native title bodies corporate in relation to land or
waters in the area; and
(b) all representative Aboriginal/Torres Strait Islander bodies for the
area.
Relevant government
(3) Each of the following is a relevant
government:
(a) the Commonwealth, if any of the area covered by the agreement is a
place outside the jurisdictional limits of the States and Territories;
(b) a State or Territory, if any of the area covered by the agreement is
within the jurisdictional limits of the State or Territory.
Other parties
(4) Any of the following may also be a party to the agreement:
(a) any registered native title claimant in relation to land or waters in
the area;
Note 1: Registered native title claimants are persons whose
names appear on the Register of Native Title Claims as applicants in relation to
claims to hold native title: see the definition of registered native title
claimant in section 253.
Note 2: The agreement will bind all members of the native
title claim group concerned: see paragraph 24EA(1)(b).
(b) any other person who claims to hold native title in relation to land
or waters in the area;
(c) any other person.
(1) The agreement may be given for any consideration, and subject to any
conditions, agreed by the parties (other than consideration or conditions that
contravene any law).
Consideration may be freehold grant or other interests
(2) Without limiting subsection (1), the consideration may be the grant of
a freehold estate in any land, or any other interests in relation to land
whether statutory or otherwise.
Persons wishing to make the agreement may request assistance from the
NNTT or a recognised State/Territory body in negotiating the
agreement.
Application
(1) Any party to the agreement may, if all of the other parties agree,
apply in writing to the Registrar for the agreement to be registered on the
Register of Indigenous Land Use Agreements.
Things accompanying application
(2) The application must be accompanied by a copy of the agreement and any
other prescribed documents or information.
Notice to be given
(1) The Registrar must:
(a) give notice of the agreement, in accordance with subsection (2), to
any of the following who are not parties to the agreement:
(i) the Commonwealth Minister;
(ii) if the agreement covers an area within the jurisdictional limits of a
State or Territory—the State Minister or the Territory Minister for the
State or Territory;
(iii) any local government body for the area covered by the
agreement;
(iv) any other person whom the Registrar, having regard to the nature of
the agreement, considers appropriate; and
(b) notify the public in the determined way of the agreement in accordance
with subsection (2).
Content of notice
(2) The notice under paragraph (1)(a) or (b) must:
(a) describe the area covered by the agreement; and
(b) state the name of each party to the agreement and the address at which
the party can be contacted; and
(c) set out any statements included in the agreement that are of a kind
mentioned in paragraph 24EB(1)(b) or (c); and
(d) include a statement that, within the period (the notice
period) of 3 months after the notification day (see subsection (3)), any
person claiming to hold native title in relation to any of the land or waters in
the area covered by the agreement may:
(i) obtain a copy of the agreement from the Registrar; and
(ii) object, in writing to the Registrar, against registration of the
agreement on the ground that it would not be fair and reasonable to do
so.
Notice to specify day
(3) The notice must specify a day as the notification day
for the agreement. Each such notice in relation to the agreement must specify
the same day.
Which days may be specified
(4) That day must be a day by which, in the Registrar’s opinion, it
is reasonable to assume that all notices under paragraph (1)(a) or (b) in
relation to the agreement will have been received by, or will otherwise have
come to the attention of, the persons who must be notified under those
paragraphs.
Request for copy of agreement
(5) If a person claiming to hold native title in relation to any of the
land or waters covered by the agreement requests a copy of the agreement, the
Registrar must comply with the request.
Making objections
(1) Any person claiming to hold native title in relation to any of the
land or waters in the area covered by the agreement may make an application to
the Registrar objecting against registration of the agreement on the ground that
it would not be fair and reasonable to register the agreement.
Assistance in withdrawing objection
(2) If an objection is made within the notice period, the parties may
request assistance from the NNTT or a recognised State/Territory body in
negotiating with the person making the objection with a view to having the
objection withdrawn.
The Registrar must, after the end of the notice period, decide whether or
not to register the agreement on the Register of Indigenous Land Use
Agreements.
Registration only if conditions satisfied
(1) If a condition in subsection (2) is satisfied, the Registrar must
register the agreement. If none of the conditions is satisfied, the Registrar
must not register the agreement.
Conditions
(2) The conditions are that:
(a) no objection against registration of the agreement was made within the
notice period; or
(b) one or more objections against registration of the agreement were made
within the notice period, but they have all been withdrawn; or
(c) one or more objections against registration of the agreement were made
during the notice period, all of them have not been withdrawn, but none of the
persons making them has satisfied the NNTT or a recognised State/Territory body
that it would not be fair and reasonable to register the agreement, having
regard to:
(i) the content of the agreement; and
(ii) the effect of the agreement on native title rights and interests;
and
(iii) any benefits provided under the agreement to current native title
holders (whether or not identified at the time the agreement is made) and their
successors, and the way in which those benefits are to be distributed;
and
(iv) any other relevant circumstance.
Note: Sections 77A and 77B deal with applications to the
NNTT objecting against registration of the agreement.
The regulations may provide for procedures and conditions for the
registration of agreements under this Subdivision on the Register of Indigenous
Land Use Agreements. Agreements are to be registered if either those procedures
and conditions or the ones set out in sections 24DH to 24DL are complied
with.
(1) While details of an agreement are entered on the Register of
Indigenous Land Use Agreements, the agreement has effect, in addition to any
effect that it may have apart from this subsection, as if:
(a) it were a contract among the parties to the agreement; and
(b) all persons holding native title in relation to any of the land or
waters in the area covered by the agreement, who are not already parties to the
agreement, were bound by the agreement in the same way as the registered native
title bodies corporate, or the native title group, as the case may be.
Note: Section 199B specifies the details of the agreement
that are required to be entered on the Register.
Only certain persons bound by agreement
(2) To avoid doubt, a person is not bound by the agreement unless the
person is a party to the agreement or a person to whom paragraph (1)(b)
applies.
Legislation etc. to give effect to agreement not affected
(3) If the Commonwealth, a State or a Territory is a party to an
indigenous land use agreement whose details are entered in the Register of
Indigenous Land Use Agreements, this Act does not prevent the Commonwealth, the
State or the Territory doing any legislative or other act to give effect to any
of its obligations under the agreement.
Coverage of section
(1) The consequences set out in this section apply if:
(a) a future act is done; and
(b) when it is done, there are on the Register of Indigenous Land Use
Agreements details of an agreement that includes a statement to the effect that
the parties consent to:
(i) the doing of the act or class of act in which the act is included;
or
(ii) the doing of the act, or class of act in which the act is included,
subject to conditions; and
(c) if the act is, apart from this Subdivision, an act to which
Subdivision P (which deals with the right to negotiate) applies—the
agreement also includes a statement to the effect that Subdivision P is not
intended to apply; and
Note: The fact that, under the “right to
negotiate” provisions in Subdivision P, agreements can be made after
notice of an act is given as mentioned in section 29 does not prevent an
indigenous land use agreement being made that consents to the doing of the
act.
(d) if the act is the surrender of native title under an agreement covered
by Subdivision B or C—the agreement also includes a statement to the
effect that the surrender is intended to extinguish the native title rights and
interests.
Validation of act
(2) The act is valid to the extent that it affects native title in
relation to land or waters in the area covered by the agreement.
Non-extinguishment principle
(3) Unless a statement of the kind mentioned in paragraph (1)(d) in
relation to the act is included in the agreement, the non-extinguishment
principle applies to the act.
Restriction on compensation where Subdivision B agreement
(4) In the case of an agreement under Subdivision B, the following are not
entitled to any compensation for the act under this Act, other than compensation
provided for in the agreement:
(a) any registered native title body corporate who is a party to the
agreement;
(b) any common law holder of native title:
(i) for whom such a registered native title body corporate holds native
title rights and interests on trust; or
(ii) of whom such a registered native title body corporate is the agent or
representative;
Note: For the definition of common law holder,
see section 56.
(c) any native title holder who is entitled to any of the benefits
provided under the agreement.
Restriction on compensation where Subdivision C agreement
(5) In the case of an agreement under Subdivision C, the following are not
entitled to any compensation for the act under this Act, other than compensation
provided for in the agreement:
(a) any native title holder who is entitled to any of the benefits
provided under the agreement;
(b) any native title holder who authorised the making of the agreement as
mentioned in:
(i) if the application was certified by representative Aboriginal/Torres
Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph
202(8)(b); or
(ii) if the application included statements as mentioned in paragraph
24CG(3)(b) to the effect that certain requirements have been met (in summary,
relating to identifying all native title holders and ensuring that they have
authorised the making of the agreement)—that paragraph.
Restriction on compensation where Subdivision D agreement
(6) In the case of an agreement under Subdivision D, no native title
holder who is entitled to any of the benefits provided under the agreement is
entitled to any compensation for the act under this Act, other than compensation
provided for in the agreement.
Compensation under Division 5
(7) If any native title holder in relation to the land or waters covered
by the agreement (except one who, because of subsection (4), (5) or (6), is not
entitled to compensation other than that provided for in the agreement) would be
entitled to compensation under subsection 17(2) for the act on the assumption
that it was a past act referred to in that subsection:
(a) he or she is entitled, in accordance with Division 5, to compensation
for the act; and
(b) he or she may recover the compensation from:
(i) if subparagraph (ii) does not apply—the Crown in right of the
Commonwealth, a State or a Territory (according to whether the act is
attributable to the Commonwealth, the State or the Territory); or
(ii) any person or persons who, under an agreement in writing with the
Commonwealth, the State or the Territory, are liable to pay the
compensation.
The fact that this Subdivision deals with agreements with native title
holders that relate to their native title rights and interests does not imply
that the Commonwealth, a State or a Territory cannot:
(a) make other agreements; or
(b) legislate in relation to the making of other agreements;
with native title holders that relate to their native title rights and
interests (other than agreements consenting to the doing of future
acts).
(1) If an area is subject to section 24FA protection (see sections 24FB,
24FC and 24FD) at a particular time:
(a) any future act by any person in relation to the area that is done at
that time is valid; and
(b) if such an act extinguishes native title to any extent—the
native title holders are entitled to compensation, in accordance with Division
5, for the act in so far as it has that effect; and
(c) if the act mentioned in paragraph (a) does not so extinguish native
title and the native title holders would be entitled to compensation under
subsection 17(2) for the act on the assumption that it was a past act referred
to in that subsection—they are entitled, in accordance with Division 5, to
compensation for the act.
Who pays compensation
(2) The native title holders may recover the compensation from:
(a) if the act is attributable to the Commonwealth—the Crown in
right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in
right of the State or Territory.
An area is subject to section 24FA protection at a
particular time if:
(a) before that time, a non-claimant application (see section 253), or a
corresponding application for an approved determination of native title under a
law of a State or Territory, has been made by or on behalf of a Minister, the
Crown in any capacity, or a statutory authority; and
(b) the area is the whole of the area covered by the application and the
application has not been amended as to area; and
(c) the period specified in the notice given under section 66, or under a
corresponding provision of the law of the State or Territory, has ended;
and
(d) at the end of that period, there is no relevant native title claim
(see section 24FE) covering the area or a part of the area; and
(e) the application has not been withdrawn, dismissed or otherwise
finalised; and
(f) there is no entry on the National Native Title Register, included
under paragraph 193(1)(a) or (b), specifying that native title exists in
relation to the area or a part of the area.
An area is subject to section 24FA protection
at a particular time if:
(a) before that time, a non-claimant application, or a corresponding
application for an approved determination of native title under a law of a State
or Territory, has been made; and
(b) the application is not covered by paragraph 24FB(a); and
(c) the area is the whole or a part of the area covered by the
application; and
(d) the period specified in the notice given under section 66, or under a
corresponding provision of the law of the State or Territory, has ended;
and
(e) either:
(i) at the end of that period, there is no relevant native title claim
(see section 24FE) covering the area; or
(ii) after the end of that period, but before the particular time, all
entries that relate to a relevant native title claim that covered the area are
removed from the Register of Native Title Claims or cease to cover the area;
and
(f) the application, in so far as it relates to that area, has not been
withdrawn, dismissed or otherwise finalised; and
(g) there is no entry on the National Native Title Register, included
under paragraph 193(1)(a) or (b), specifying that native title exists in
relation to the area.
An area is subject to section 24FA protection
at a particular time if it is covered by an entry on the National Native Title
Register, included under paragraph 193(1)(a) or (b), specifying that no native
title exists in relation to the area.
For the purposes of this Subdivision, there is a relevant native
title claim covering an area at the end of the period mentioned in
paragraph 24FB(c) or 24FC(d) if:
(a) at that time, there is an entry covering that area on the Register of
Native Title Claims; or
(b) after that time, an entry covering that area is included on the
Register of Native Title Claims, provided the application containing the claim
was made before that time and:
(i) the claim is accepted by the Registrar for registration under
subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy
conditions equivalent to those set out in sections 190B and 190C under a law of
a State or Territory; or
(ii) the claim is accepted by the Registrar for registration as a result
of an application under subsection 190D(2) and the application was made not more
than 28 days after the notice under subsection 190D(1) was given; or
(iii) the claim is found to satisfy conditions equivalent to those set out
in sections 190B and 190C under a provision of a law of a State or Territory to
similar effect as section 190D, and the application under that provision was
made within a time period corresponding to that set out in subparagraph
(ii).
Primary production activity
(1) The expression primary production activity includes the
following:
(a) cultivating land;
(b) maintaining, breeding or agisting animals;
(c) taking or catching fish or shellfish;
(d) forest operations (defined in section 253);
(e) horticultural activities (see section 253 for the definition of
horticulture);
(f) aquacultural activities;
(g) leaving fallow or de-stocking any land in connection with the doing of
any thing that is a primary production activity.
Mining excluded
(2) The expression primary production activity does not
include mining.
(1) This section applies to a future act if:
(a) a non-exclusive agricultural lease (see section 247B) or non-exclusive
pastoral lease (see section 248B) was granted on or before 23 December 1996;
and
(b) the grant was valid (including because of Division 2 or 2A);
and
Note: As at the commencement of this section, grants before
1 January 1994 that were invalid because of native title have been validated by
or under Division 2.
(c) the future act takes place after 23 December 1996; and
(d) the future act permits or requires the carrying on of any of the
following while the lease (including as renewed on one or more occasions) is in
force:
(i) a primary production activity (see section 24GA) on the area covered
by the lease; or
(ii) another activity, on the area covered by the lease, that is
associated with or incidental to a primary production activity covered by
subparagraph (i), provided that, when the other activity is being carried on,
the majority of the area covered by the lease is used for primary production
activities.
Note: For the renewal, re-grant, re-making or extension of
certain acts covered by this section, see Subdivision I.
Farm tourism included
(2) This section applies to a future act that:
(a) takes place after 23 December 1996; and
(b) permits or requires a farm tourism activity in the area covered by a
lease meeting the requirements of paragraphs (1)(a) and (b) while the lease is
in force (including as renewed on one or more occasions).
Exception to subsection (2)
(3) However, this section does not apply to a future act permitting or
requiring farm tourism if the act permits or requires tourism that involves
observing activities or cultural works of Aboriginal peoples or Torres Strait
Islanders.
Certain acts not covered
(4) This section does not apply to a future act if:
(a) where the lease covered by paragraph (1)(a) is a non-exclusive
pastoral lease covering an area greater than 5,000 hectares—the act has
the effect that the majority of the area covered by the lease is used for
purposes other than pastoral purposes; or
(b) in any case—the act converts a lease covered by paragraph (1)(a)
into a lease conferring a right of exclusive possession, or into a freehold
estate, over any of the land or waters covered by the lease.
Note: If such an act is done in exercise of a legally
conferred right, it could be covered by section 24ID. A lease conferring such
rights or a freehold estate could be granted after a compulsory acquisition of
native title under section 24MD or under certain indigenous land use
agreements.
Validation of act
(5) If this section applies to a future act, the act is valid.
Non-extinguishment principle
(6) The non-extinguishment principle applies to the act.
Compensation
(7) The native title holders concerned are entitled to compensation for
the act in accordance with Division 5.
Who pays compensation
(8) The compensation is payable by:
(a) if the act is attributable to the Commonwealth—the Crown in
right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in
right of the State or Territory.
Notification
(9) If:
(a) the primary production activity mentioned in subparagraph (1)(d)(i) or
(ii) is forest operations, a horticultural activity or an aquacultural activity;
or
(b) the lease mentioned in paragraph (1)(a) is a non-exclusive pastoral
lease and the primary production activity mentioned in subparagraph (1)(d)(i) or
(ii) is an agricultural activity;
before the future act is done, the person proposing to do the act
must:
(c) notify, in the way determined in writing by the Commonwealth Minister,
any representative Aboriginal/Torres Strait Islander bodies, registered native
title bodies corporate and registered native title claimants in relation to the
land or waters covered by the non-exclusive agricultural lease or non-exclusive
pastoral lease that the act, or acts of that class, are to be done in relation
to the particular land or waters; and
(d) give them an opportunity to comment on the act or class of
acts.
(1) This section applies to an activity if:
(a) a non-exclusive agricultural lease (see section 247B) or non-exclusive
pastoral lease (see section 248B) was granted on or before 23 December 1996;
and
(b) the grant was valid (including because of Division 2 or 2A);
and
Note: As at the commencement of this section, grants before
1 January 1994 that were invalid because of native title have been validated by
or under Division 2.
(c) the activity is the carrying on, after 23 December 1996 and while the
lease (including as renewed on one or more occasions) is in force, of any of the
following:
(i) a primary production activity on the area covered by the lease;
or
(ii) another activity, on the area covered by the lease, that is
associated with or incidental to a primary production activity covered by
subparagraph (i), provided that, when the other activity is being carried on,
the majority of the area covered by the lease is used for primary production
activities.
Activities prevail over native title etc.
(2) To avoid doubt:
(a) the doing of any activity mentioned in paragraph (1)(c) prevails over
any native title rights and interests and any exercise of those rights and
interests, but does not extinguish them; and
(b) the existence and exercise of native title rights and interests do not
prevent the carrying on of any such activity.
Note: This subsection is not intended to imply that the
person carrying on the activity is not subject to the laws of a State or
Territory.
Compensation
(3) Native title holders are not entitled to compensation under this Act
for the carrying on of the activity.
Note: Any compensation to which the native title holders may
be entitled under this Act for the grant of the lease, or other authority for
the doing of the activity, may take into account the doing of the
activity.
(1) This section applies to a future act if:
(a) a freehold estate, an agricultural lease (see section 247) or a
pastoral lease (see section 248) was granted on or before 23 December 1996;
and
(b) the grant was valid (including because of Division 2 or 2A);
and
Note: As at the commencement of this section, grants before
1 January 1994 that were invalid because of native title have been validated by
or under Division 2.
(c) the future act takes place after 23 December 1996; and
(d) the future act is not:
(i) the grant of a lease; or
(ii) any act that confers a right of exclusive possession over land;
and
(e) the future act permits or requires the carrying on of grazing, or an
activity consisting of or relating to gaining access to or taking water,
that:
(i) takes place while the freehold estate exists or the agricultural lease
or pastoral lease (including as renewed on one or more occasions) is in force;
and
(ii) is directly connected to the carrying on of any primary production
activity on the area covered by the freehold estate or the agricultural lease or
pastoral lease; and
(iii) takes place in an area adjoining or near the area covered by the
freehold estate or the agricultural lease or pastoral lease; and
(iv) does not prevent native title holders in relation to land or waters
in the area in which the activity will be carried on from having reasonable
access to the area.
Example 1: An example of an act covered by this section is
the conferral of rights to graze cattle in an area adjoining that covered by an
agricultural lease or pastoral lease, if the cattle are also grazed in the area
covered by the lease.
Example 2: Another example is the conferral of rights to
take water from an area near that covered by an agricultural lease or pastoral
lease, if the water is for use in carrying on primary production activities in
the area covered by the lease.
Note: For the renewal, re-grant, re-making or extension of
certain acts covered by this section, see Subdivision I.
Validation of act
(2) If this section applies to a future act, the act is valid.
Non-extinguishment principle
(3) The non-extinguishment principle applies to the act.
Compensation
(4) The native title holders concerned are entitled to compensation for
the act in accordance with Division 5.
Who pays compensation
(5) The compensation is payable by:
(a) if the act is attributable to the Commonwealth—the Crown in
right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in
right of the State or Territory.
Notification
(6) Before the act is done, the person proposing to do the act
must:
(a) notify, in the way determined in writing by the Commonwealth Minister,
any representative Aboriginal/Torres Strait Islander bodies, registered native
title bodies corporate and registered native title claimants in relation to the
land or waters that will be affected by the act that the act, or acts of that
class, are to be done in relation to the land or waters concerned; and
(b) give them an opportunity to comment on the act or class of
acts.
(1) This section applies to a future act if:
(a) a non-exclusive agricultural lease (see section 247B) or a
non-exclusive pastoral lease (see section 248B) was granted on or before 23
December 1996; and
(b) the grant was valid (including because of Division 2 or 2A);
and
Note: As at the commencement of this section, grants before
1 January 1994 that were invalid because of native title have been validated by
or under Division 2.
(c) the future act takes place after 23 December 1996 and while the lease
(including as renewed on one or more occasions) is in force; and
(d) the future act is not the grant of a lease; and
(e) the future act confers on any person (including the lessee) a
right:
(i) to cut and remove timber; or
(ii) to extract and remove gravel; or
(iii) to quarry for and remove rocks; or
(iv) to obtain and remove sand, soil or other resources (except so far as
doing so constitutes mining);
from the area covered by the non-exclusive agricultural lease or
non-exclusive pastoral lease; and
(f) before the future act is done, the person proposing to do the
act:
(i) has notified, in the way determined in writing by the Commonwealth
Minister, any representative Aboriginal/Torres Strait Islander bodies,
registered native title bodies corporate and registered native title claimants
in relation to the land or waters covered by the non-exclusive agricultural
lease or non-exclusive pastoral lease that the act, or acts of that class, are
to be done in relation to the particular land or waters; and
(ii) has given them an opportunity to comment on the act or class of
acts.
Note: For the renewal, re-grant, re-making or extension of
certain acts covered by this section, see Subdivision I.
Validation of act
(2) The future act is valid.
Non-extinguishment principle
(3) The non-extinguishment principle applies to the act.
Compensation
(4) The native title holders concerned are entitled to compensation for
the act in accordance with Division 5.
Who pays compensation
(5) The compensation is payable by:
(a) if the act is attributable to the Commonwealth—the Crown in
right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in
right of the State or Territory.
Legislative acts
(1) This section applies to a future act consisting of the making,
amendment or repeal of legislation in relation to the management or regulation
of:
(a) surface and subterranean water; or
(b) living aquatic resources; or
(c) airspace.
In this subsection, water means water in all its
forms.
Leases, licences etc.
(2) This section also applies to a future act consisting of the grant of a
lease, licence, permit or authority under legislation that:
(a) is valid (including because of this Act); and
(b) relates to the management or regulation of:
(i) surface and subterranean water; or
(ii) living aquatic resources; or
(iii) airspace.
In this paragraph, water means water in all its
forms.
Validity of act
(3) The act is valid.
Non-extinguishment principle
(4) The non-extinguishment principle applies to the act.
Compensation
(5) The native title holders concerned are entitled to compensation for
the act in accordance with Division 5.
Who pays compensation
(6) The compensation is payable by:
(a) if the act is attributable to the Commonwealth—the Crown in
right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in
right of the State or Territory.
Notification
(7) Before an act covered by subsection (2) is done, the person proposing
to do the act must:
(a) notify, in the way determined in writing by the Commonwealth Minister,
any representative Aboriginal/Torres Strait Islander bodies, registered native
title bodies corporate and registered native title claimants in relation to the
land or waters that will be affected by the act, or acts of that class, that the
act, or acts of that class, are to be done; and
(b) give them an opportunity to comment on the act or class of
acts.
This Subdivision applies to a future act if the act is:
(a) a pre-existing right-based act (see section 24IB); or
(b) a permissible lease etc. renewal (see section 24IC).
A future act is a pre-existing right-based act if it takes
place:
(a) in exercise of a legally enforceable right created by any act done on
or before 23 December 1996 that is valid (including because of Division 2 or
2A); or
(b) in good faith in giving effect to, or otherwise because of, an offer,
commitment, arrangement or undertaking made or given in good faith on or before
23 December 1996, and of which there is written evidence created at or about the
time the offer, commitment, arrangement or undertaking was made.
(1) A future act is a permissible lease etc. renewal
if:
(a) it is:
(i) the renewal; or
(ii) the re-grant or re-making; or
(iii) the extension of the term;
of a lease, licence, permit or authority (the original lease
etc.) that is valid (including because of Division 2 or 2A);
and
(b) any of the following subparagraphs applies:
(i) the original lease etc. was granted on or before 23 December
1996;
(ii) the grant of the original lease etc. was a permissible lease etc.
renewal or a pre-existing right-based act;
(iii) the original lease etc. was created by an act covered by section
24GB, 24GD, 24GE or 24HA (which deal with certain acts in relation to primary
production activities or involving management or regulation of water and
airspace); and
(c) the future act does not:
(i) confer a right of exclusive possession over any of the land or waters
covered by the original lease etc.; or
(ii) otherwise create a larger proprietary interest in the land or waters
than was created by the original lease etc.; or
(iii) create a proprietary interest over any of the land or waters covered
by the original lease etc., where the original lease etc. created only a
non-proprietary interest; and
(d) if the original lease etc. contains, or is subject to, a reservation
or condition for the benefit of Aboriginal peoples or Torres Strait
Islanders—the renewed, re-granted, re-made or extended lease, licence,
permit or authority contains, or is subject to, the same reservation or
condition; and
(e) if the original lease etc. did not permit mining—the renewed,
re-granted, re-made or extended lease, licence, permit or authority does not
permit mining.
Replacement by 2 or more leases etc.
(2) If 2 or more leases, licences, permits or authorities are granted in
place of, respectively, a single lease, licence, permit or authority, then, for
the purposes of subsection (1), each of the 2 or more grants is taken to be a
renewal of the single lease, licence, permit or
authority.
Features that do not prevent a lease etc. from being a
renewal
(3) The features listed in subsection (4) do not prevent:
(a) an act from being the renewal, re-grant, re-making, or extension of
the term, of a lease, licence, permit or authority (the old
authority) for the purposes of subsection (1) (the renewed, re-granted,
re-made or extended lease, licence, permit or authority being the new
authority); or
(b) 2 or more leases, licences, permits or authorities (each of which is a
new authority) from being granted in place of a
single lease, licence, permit or authority (the old authority) for
the purposes of subsection (2).
Features
(4) The features are as follows:
(a) the new authority, or the new authorities together, cover a smaller
area than the old authority;
(b) the term of the new authority, or of any of the new authorities, is
longer than the term of the old authority;
(c) the new authority or any of the new authorities is a perpetual
lease;
(d) if the new authority or any of the new authorities is a non-exclusive
agricultural lease or a non-exclusive pastoral lease—the new authority
permits or requires the carrying on of an activity that the old authority did
not permit or require and that consists of:
(i) a primary production activity (see section 24GA); or
(ii) another activity, on the area covered by the new authority or of any
of the new authorities, that is associated with or incidental to a primary
production activity, provided that, when the other activity is being carried on,
the use of the majority of the area covered by the new authority, or the new
authorities together, will be for primary production activities.
(1) If this Subdivision applies to a future act:
(a) the act is valid; and
(b) if the act consists of the grant of a freehold estate, or the
conferral of a right of exclusive possession, over particular land or
waters—the act extinguishes any native title in relation to the land or
waters; and
Note: The only acts to which this paragraph applies are
certain acts covered by section 24IB.
(c) in any other case—the non-extinguishment principle applies to
the act; and
(d) in any case—the native title holders are entitled to
compensation for the act in accordance with Division 5.
Who pays compensation
(2) The compensation is payable by:
(a) if the act is attributable to the Commonwealth—the Crown in
right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in
right of the State or Territory.
Notification
(3) If paragraph 24IB(b) applied in relation to the future act, then,
before the act is done, the person proposing to do the act must:
(a) notify, in the way determined in writing by the Commonwealth Minister,
any representative Aboriginal/Torres Strait Islander bodies, registered native
title bodies corporate and registered native title claimants in relation to the
land or waters that will be affected by the act that the act, or acts of that
class, are to be done in relation to the land or waters concerned; and
(b) give them an opportunity to comment on the act or class of
acts.
Reservations etc.
(1) This Subdivision applies to a future act (the later
act) if:
(a) an act (the earlier act) took place before the later act
and on or before 23 December 1996; and
(b) the earlier act was valid (including because of Division 2 or 2A);
and
(c) the earlier act:
(i) was done by the Crown in right of the Commonwealth, a State or
Territory; or
(ii) consisted of the making, amendment or repeal of legislation by the
Commonwealth, a State or Territory: and
(d) the earlier act contained, made or conferred a reservation,
proclamation, dedication, condition, permission or authority (the
reservation) under which the whole or part of any land or waters
was to be used for a particular purpose; and
(e) the later act is done in good faith:
(i) under or in accordance with the reservation; or
(ii) in the area covered by the reservation, so long as the act’s impact on native title is no greater than the impact that any act that could have been done under or in accordance with t