Northern Territory Consolidated Acts

VALIDATION (NATIVE TITLE) ACT - SCHEDULE 1

Section 3A

PREVIOUS EXCLUSIVE POSSESSION ACTS

1. An act is a previous exclusive possession act if -

(a) it is valid (including because of Division 2 or 2A of Part 2 of the Commonwealth Act);

(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 within the meaning of section 249C of the Commonwealth Act, being -

(A) anything set out in Schedule 2 to this Act, other than a mining lease or anything whose grant or vesting is covered by clause 4, 5, 6, 7 or 8, of this Schedule; or

(B) an interest, in relation to land or waters, of a type declared by a regulation under the Commonwealth Act for the purposes of section 249C(1)(b) of that Act;

(ii) a freehold estate;

(iii) a commercial lease that is neither an agricultural lease nor a pastoral lease;

(iv) an exclusive agricultural lease or an exclusive pastoral lease;

(v) a residential lease;

(vi) a community purposes lease;

(vii) what was taken by section 245(3) of the Commonwealth Act to be a separate lease in respect of land or waters mentioned in section 245(3)(a) of that Act, assuming that the reference in section 245(2) of that Act 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.

2. If -

(a) by or under legislation of the 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 clause 1(c) to be the vesting of a freehold estate over the land or waters.

3. An act is a previous exclusive possession act if -

(a) it is valid (including because of Division 2 or 2A of the Commonwealth Act); 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.

4. An act is not a previous exclusive possession act if it is -

(a) 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;

(b) the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

(c) the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (a) or (b) is in effect in relation to the land or waters.

5. An act is not a previous exclusive possession act if the grant or vesting concerned involves the establishment of an area, such as a national or Territory park, for the purpose of preserving the natural environment of the area.

6. An act is not a previous exclusive possession act if it is done by or under legislation that expressly provides that the act does not extinguish native title.

7. If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a previous exclusive possession act -

(a) unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters; or

(b) if the grant or vesting does not, apart from this Act, extinguish native title in relation to the land or waters - unless and until the land or waters are (whether before or after 23 December 1996) used to any extent in a way that, apart from this Act, extinguishes native title in relation to the land or waters.

8. An act is not a previous exclusive possession act if regulations under the Commonwealth Act provide that the act is not a previous exclusive possession act.

9. To avoid doubt, the fact that an act is, because of any of the previous clauses, not a previous exclusive possession act does not imply that the act is not valid.

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