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NATIVE TITLE ACT 1993 - SECT 228

Past act

Definition

             (1)  This section defines past act .

Acts before 1 July 1993 or 1 January 1994

             (2)  Subject to subsection (10), if:

                     (a)  either:

                              (i)  at any time before 1 July 1993 when native title existed in relation to particular land or waters, an act consisting of the making, amendment or repeal of legislation took place; or

                             (ii)  at any time before 1 January 1994 when native title existed in relation to particular land or waters, any other act took place; and

                     (b)  apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist;

the act is a past act in relation to the land or waters.

Options exercised on or after 1 January 1994 etc.

             (3)  Subject to subsection (10), an act that takes place on or after 1 January 1994 is a past act if:

                     (a)  it would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

                     (b)  it takes place:

                              (i)  in exercise of a legally enforceable right created by the making, amendment or repeal of legislation before 1 July 1993 or by any other act done before 1 January 1994; or

                             (ii)  in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith before 1 July 1993, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made; and

                     (c)  the act is not the making, amendment or repeal of legislation.

Extensions, renewals etc.

             (4)  Subject to subsections (6) and (10), an act (the later act ) that takes place on or after 1 January 1994 is a past act if:

                     (a)  the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

                     (b)  an act (the earlier act ) that is a past act because of any subsection of this section (including because of another application of this subsection) took place before the later act; and

                     (c)  the earlier act created interests in a person and the later act creates interests in:

                              (i)  the same person; or

                             (ii)  another person who has acquired the interests of the first person (by assignment, succession or otherwise);

                            in relation to the whole or part of the land or waters to which the earlier act relates; and

                     (d)  the interests created by the later act take effect before or immediately after the interests created by the earlier act cease to have effect; and

                     (e)  the interests created by the later act permit activities of a similar kind to those permitted by the earlier act.

Examples of similar and dissimilar acts for the purposes of paragraph (4)(e)

             (5)  The following are examples for the purposes of paragraph (4)(e):

                     (a)  the grant of a lease that permits mining only for a particular mineral followed by the grant of a lease that permits similar mining for another mineral is an example of a case where interests created by an earlier act permit activities that are of a similar kind to those permitted by a later act;

                     (b)  the grant of a lease that permits only grazing followed by the grant of a lease that permits mining is an example of a case where interests created by an earlier act permit activities that are not of a similar kind to those permitted by a later act.

Cases excluded from subsection (4)

             (6)  Subsection (4) does not apply if:

                     (a)  the earlier act was the creation of a non-proprietary interest in relation to land or waters and the later act is the creation of a proprietary interest in land or waters; or

                     (b)  the earlier act was the creation of a proprietary interest in land or waters and the later act is the creation of a larger proprietary interest in land or waters; or

                     (c)  if the earlier act contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders--the later act does not contain the same reservation or condition; or

                     (d)  the earlier act or the later act is the making, amendment or repeal of legislation.

Example of earlier and later acts for the purposes of paragraph (6)(a)

             (7)  For the purposes of paragraph (6)(a), the issue of a licence followed by the grant of a lease is an example of an earlier act that is the creation of a non-proprietary interest in relation to land and a later act that is the creation of a proprietary interest in land.

Example of earlier and later acts for the purposes of paragraph (6)(b)

             (8)  For the purposes of paragraph (6)(b), the grant of a lease followed by the grant of a freehold estate is an example of an earlier act that is the creation of a proprietary interest in land and a later act that is the creation of a larger proprietary interest in land.

Other extensions, and developments, of earlier acts

             (9)  Subject to subsection (10), an act (the later act ) that takes place on or after 1 January 1994 is a past act if:

                     (a)  the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

                     (b)  an act (the earlier act ) that is a past act because of any subsection of this section took place before the later act; and

                     (c)  the earlier act contained or conferred a reservation, condition, permission or authority under which the whole or part of the land or waters to which the earlier act related was to be used at a later time for a particular purpose (for example, a reservation for forestry purposes); and

                     (d)  the later act is done in good faith under or in accordance with the reservation, condition, permission or authority (for example, the issue in good faith of a licence to take timber under a reservation for forestry purposes); and

                     (e)  the later act is not the making, amendment or repeal of legislation.

Excluded acts

           (10)  An act is not a past act if it is:

                     (a)  the Queensland Coast Islands Declaratory Act 1985 of Queensland; or

                     (b)  any other act declared by the regulations to be an excluded act for the purposes of this paragraph.



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