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NATIVE TITLE ACT 1993 - SECT 24MD

Treatment of acts that pass the freehold test

Validation of act

             (1)  If this Subdivision applies to a future act, then, subject to Subdivision P (which deals with the right to negotiate), the act is valid.

Extinguishment of native title by compulsory acquisition

             (2)  If:

                     (a)  the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both:

                              (i)  the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and

                             (ii)  the compulsory acquisition by the Commonwealth, the State or the Territory of non-native title rights and interests in relation to land or waters; and

                     (b)  the whole, or the equivalent part, of all non-native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired (whether compulsorily or by surrender, cancellation or resumption or otherwise) in connection with the compulsory acquisition of the native title rights and interests; and

                   (ba)  the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests when their rights and interests are acquired;

then:

                     (c)  the compulsory acquisition extinguishes the whole or the part of the native title rights and interests; and

                     (d)  if compensation on just terms is provided under a law of the Commonwealth, a State or a Territory to the native title holders for the compulsory acquisition, and they request that the whole or part of any such compensation should be in a form other than money, the person providing the compensation must:

                              (i)  consider the request; and

                             (ii)  negotiate in good faith in relation to the request; and

                     (e)  if compensation on just terms is not provided under a law of the Commonwealth, a State or Territory to the native title holders for the compulsory acquisition, they are entitled to compensation for the acquisition in accordance with Division 5.

Note 1:       Subdivision P (which deals with the right to negotiate) applies to some acquisitions.

Note 2:       This subsection only deals with the case where native title rights and interests are compulsorily acquired. It is also possible for native title rights and interests to be acquired voluntarily by means of an indigenous land use agreement or an agreement covered by subsection (2A). In such cases, non-native title rights and interests could be acquired either compulsorily or by some other means (e.g. voluntarily).

Extinguishment of native title by surrender in course of right to negotiate process

          (2A)  If:

                     (a)  notice of a proposed compulsory acquisition of native title rights and interests is given in accordance with section 29 or with an equivalent alternative provision applicable under section 43 or 43A; and

                     (b)  an agreement arose out of negotiations in relation to the proposed compulsory acquisition of the native title rights and interests; and

                     (c)  the agreement includes a statement to the effect that an act consisting of the surrender of the whole or part of the native title rights and interests is intended to extinguish the whole or the part of the native title rights and interests;

then:

                     (d)  the surrender extinguishes the whole or the part of the native title rights and interests; and

                     (e)  no native title holder who is entitled to any benefit provided under the agreement is entitled to any compensation for the act under this Act, other than compensation provided for in the agreement; and

                      (f)  any other native title holder is entitled to compensation for the act in accordance with Division 5.

Non-extinguishment and compensation

             (3)  In the case of any future act to which this Subdivision applies that is not covered by subsection (2) or (2A):

                     (a)  the non-extinguishment principle applies to the act; and

                     (b)  if the following conditions are satisfied:

                              (i)  the similar compensable interest test is satisfied in relation to the act; and

                             (ii)  the law mentioned in section 240 (which defines similar compensable interest test ) does not provide for compensation to the native title holders for the act;

                            the native title holders are entitled to compensation for the act in accordance with Division 5.

Who pays compensation

             (4)  The native title holders may recover the compensation from:

                     (a)  if the act is attributable to the Commonwealth:

                              (i)  if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation--that person; or

                             (ii)  if not--the Crown in right of the Commonwealth; or

                     (b)  if the act is attributable to a State or Territory:

                              (i)  if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation--that person; or

                             (ii)  if not--the Crown in right of the State or Territory.

Exception for certain lessees

             (5)  If:

                     (a)  the act is the compulsory acquisition of the whole or part of any native title rights and interests; and

                     (b)  the land or waters concerned are to any extent the subject of a non-exclusive agricultural lease or a non-exclusive pastoral lease;

then, despite subsection (4):

                     (c)  the native title holders are not entitled to recover the compensation from the lessee; and

                     (d)  if the act is attributable to the Commonwealth--the native title holders may recover the compensation from the Crown in right of the Commonwealth; and

                     (e)  if the act is attributable to a State or Territory--the native title holders may recover the compensation from the Crown in right of the State or Territory.

Consequences of certain acts

             (6)  In the case of any future act to which this Subdivision applies, other than:

                     (a)  an act to which Subdivision P (which deals with the right to negotiate) applies; or

                     (b)  an act determined under section 26A to be an approved exploration etc. act; or

                     (c)  an act determined under section 26B to be an approved gold or tin mining act; or

                     (d)  an act covered by section 26C (which deals with opal or gem mining);

the consequences in subsections (6A) and (6B) apply.

Procedural rights

          (6A)  The native title holders, and any registered native title claimants in relation to the land or waters concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned.

Other consequences

          (6B)  If the act is:

                     (a)  the compulsory acquisition of native title rights and interests for the purpose of conferring rights or interests in relation to the land or waters concerned on persons other than the Commonwealth, the State or the Territory to which the act is attributable; or

                     (b)  the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility (see section 253) associated with mining;

the following consequences also apply:

                     (c)  the Commonwealth, the State or the Territory to which the act is attributable must notify each of the following:

                              (i)  any registered native title claimant (a claimant ) in relation to the land or waters; and

                             (ii)  any registered native title body corporate (a body corporate ), in relation to the land or waters; and

                            (iii)  any representative Aboriginal/Torres Strait Islander body in relation to the land or waters; and

                            (iv)  the Registrar;

                            that the act is to be done; and

                     (d)  any claimant or body corporate may object, within 2 months after the notification, to the doing of the act so far as it affects their registered native title rights and interests; and

                     (e)  either:

                              (i)  in a paragraph (a) case--the Commonwealth, the State or the Territory; or

                             (ii)  in a paragraph (b) case--the person who requested or applied for the doing of the act;

                            must consult any claimants, and bodies corporate, who object, about ways of minimising the act's impact on registered native title rights and interests in relation to the land or waters, and, if relevant, any access to the land or waters or the way in which any thing authorised by the act might be done; and

                      (f)  if any claimant or body corporate objects, as mentioned in paragraph (d), to the doing of the act and so requests, the Commonwealth, the State or the Territory must ensure that the objection is heard by an independent person or body; and

                     (g)  if the independent person or body hearing any objection as mentioned in paragraph (f) makes a determination upholding the objection, or that contains conditions about the doing of the act that relate to registered native title rights and interests, the determination must be complied with unless:

                              (i)  the Minister of the Commonwealth, the State or the Territory responsible for indigenous affairs is consulted; and

                             (ii)  the consultation is taken into account; and

                            (iii)  it is in the interests of the Commonwealth, the State or the Territory not to comply with the determination.

Meaning of determination

          (6C)  In paragraph (6B)(g):

"determination " includes recommendation.

"in the interests of " the Commonwealth, the State or the Territory includes:

                     (a)  for the social or economic benefit of the Commonwealth, the State or the Territory (including of Aboriginal peoples and Torres Strait Islanders); and

                     (b)  in the interests of the relevant region or locality in the Commonwealth, the State or the Territory.

Satisfying the right to be notified

             (7)  If:

                     (a)  because of subsection (6A) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and

                     (b)  there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give the required notification is by notifying, in the way determined, by legislative instrument, by the Commonwealth Minister for the purposes of this subsection, the following that the act is to take place:

                     (c)  any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate;

                     (d)  any registered native title claimants in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate.

Satisfying other procedural rights

             (8)  If:

                     (a)  because of subsection (6A) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and

                     (b)  there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give effect to the requirement is:

                     (c)  by doing the thing in relation to any registered native title claimant in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate; or

                     (d)  if there are no such registered native title claimants--by ensuring that any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate have an opportunity to comment on the doing of the act.



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