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Queensland
NATIVE TITLE
(QUEENSLAND) BILL 1993
Queensland
NATIVE TITLE (QUEENSLAND) BILL
1993
TABLE OF PROVISIONS
Section Page
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3 Objects of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5 Words and expressions used in Commonwealth Native Title Act . . . . . . . . 15
6 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
PART 2--VALIDATION AND ITS EFFECTS
Division 1--General
7 Object of Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8 Validation of past acts attributable to State (NTA, s.18) . . . . . . . . . . . . . . . 16
9 Application of remaining provisions of Part . . . . . . . . . . . . . . . . . . . . . . . . . 16
Division 2--Effect of validation on native title
10 Category A past acts that are not public works (NTA, ss.18 and 14(a)) . . 16
11 Category A past acts that are public works (NTA, ss.18 and 14(b)) . . . . . . 17
12 Inconsistent category B past acts (NTA, ss.18 and 14(c)) . . . . . . . . . . . . . . 17
13 Category C and D past acts (NTA, ss.18 and 14(d)) . . . . . . . . . . . . . . . . . . 17
Division 3--Other effects of validation
14 Preservation of beneficial reservations and conditions (NTA,
ss.18 and 15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
15 Compensation (NTA, ss.19 and 16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
PART 3--CONFIRMATION OF CERTAIN RIGHTS
16 Object of Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2
Native Title (Queensland)
17 Confirmation of ownership of natural resources etc. (NTA, s.197(1)) . . . . . 19
18 Confirmation of access to beaches etc. (NTA, s.197(2) and (3)) . . . . . . . . 20
PART 4--QUEENSLAND NATIVE TITLE TRIBUNAL AND
REGISTRAR
Division 1--The Tribunal
19 Queensland Native Title Tribunal (NTA, s.100) . . . . . . . . . . . . . . . . . . . . . . 20
20 Functions (NTA, s.101) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
21 Tribunal's way of operating (NTA, s.102) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
22 Questions about native title in other courts . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Division 2--The Registrar
23 Registrar (NTA, s.88(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
24 Functions of Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
PART 5--RECOGNISED AND ARBITRAL BODIES
25 Purpose of Part (NTA, esp. ss.236 and 26) . . . . . . . . . . . . . . . . . . . . . . . . . . 22
26 Conferral of jurisdiction as recognised bodies allowed (NTA, esp.
s.48(3)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
27 Tribunal and Wardens Courts may be arbitral bodies (NTA, esp.
s.26(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
PART 6--HOLDING OF NATIVE TITLE
28 Native title to be held by body corporate (NTA, s.53) . . . . . . . . . . . . . . . . . 23
PART 7--APPLICATIONS ABOUT NATIVE TITLE
Division 1--Native title and compensation applications
29 Native title and compensation applications (NTA, s.55(1)) . . . . . . . . . . . . 24
30 Form and contents of applications (NTA, s.55(2)) . . . . . . . . . . . . . . . . . . . . 25
31 Claims to hold title with other persons (NTA, s.55(3)) . . . . . . . . . . . . . . . . 25
32 Material and fees to accompany applications (NTA, s.56) . . . . . . . . . . . . . 25
33 Action to be taken about applications (NTA, s.57) . . . . . . . . . . . . . . . . . . . 26
34 General application powers (NTA, s.58) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
35 Action to be taken about accepted applications (NTA, s.59) . . . . . . . . . . . 27
36 Special procedure for non-claimant applications (NTA, s.60) . . . . . . . . . . . 28
37 Parties (NTA, s.61) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
38 Tribunal to decide persons whose interests may be affected
(NTA, s.62) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
39 Applications that are unopposed (NTA, s.63) . . . . . . . . . . . . . . . . . . . . . . . . 29
3
Native Title (Queensland)
40 Power of Tribunal if parties reach agreement (NTA, s.64) . . . . . . . . . . . . . 30
41 Mediation conference to be held (NTA, s.65) . . . . . . . . . . . . . . . . . . . . . . . . 30
42 Power of Tribunal if parties reach agreement after mediation
conference (NTA, s.66) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
43 Applications not settled are to be heard by Tribunal (NTA, s.67) . . . . . . . . 31
Division 2--Right to negotiate applications
44 Right to negotiate applications (NTA, s.68(1)) . . . . . . . . . . . . . . . . . . . . . . 32
45 Form and contents of applications (NTA, s.68(2)) . . . . . . . . . . . . . . . . . . . . 32
46 Material and fees to accompany applications (NTA, s.69) . . . . . . . . . . . . . 32
47 Action to be taken about applications (NTA, s.70) . . . . . . . . . . . . . . . . . . . 33
Division 3--Miscellaneous
48 Assistance to potential applicants (NTA, s.71) . . . . . . . . . . . . . . . . . . . . . . . 33
49 Requests for non-monetary compensation (NTA, s.72) . . . . . . . . . . . . . . . . 33
PART 8--INQUIRIES AND DETERMINATIONS BY THE
TRIBUNAL
Division 1--Special inquiries
50 Special inquiries (NTA, s.130) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
51 Notice (NTA, s.131) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Division 2--Inquiries generally
52 Inquiries (NTA, s.132) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
53 Inquiries may cover more than 1 matter (NTA, s.133) . . . . . . . . . . . . . . . . . 35
54 Parties (NTA, s.134) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
55 Opportunity to make submissions about evidence (NTA, s.135) . . . . . . . . . 35
56 Representation before Tribunal (NTA, s.136) . . . . . . . . . . . . . . . . . . . . . . . . 36
57 Way in which questions are to be decided (NTA, s.137) . . . . . . . . . . . . . . . 36
58 Reference of questions of law to Land Appeal Court (NTA, s.138) . . . . . . 36
59 Evidence and findings in other proceedings (NTA, s.139) . . . . . . . . . . . . . . 36
60 Power of Tribunal if proceeding is frivolous or vexatious (NTA, s.140) . . . 37
61 Power of Tribunal if prima facie case not made out (NTA, s.141) . . . . . . . 37
Division 3--Conferences and hearings
62 Conferences (NTA, s.142) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
63 Hearings (NTA, s.143) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
64 Right of appearance (NTA, s.144) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4
Native Title (Queensland)
65 Taking part by telephone etc. (NTA, s.145) . . . . . . . . . . . . . . . . . . . . . . . . . 38
66 Inquiries to be held in public other than in special circumstances
(NTA, s.146) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
67 Tribunal may prohibit disclosure of evidence etc. (NTA, s.147) . . . . . . . . . 39
68 Powers of Tribunal to take evidence (NTA, s.148) . . . . . . . . . . . . . . . . . . . . 39
69 Tribunal may authorise someone else to take evidence (NTA, s.149) . . . . 40
70 Interpreters (NTA, s.150) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
71 Retention and copying of documents etc. (NTA, s.151) . . . . . . . . . . . . . . . . 40
Division 4--Determinations and reports
72 Determination of Tribunal--native title and compensation
applications (NTA, s.152) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
73 Determination that compensation is payable (NTA, s.153) . . . . . . . . . . . . . 41
74 Determination--right to negotiate applications (NTA, s.154) . . . . . . . . . . . 41
75 Reports after special inquiries (NTA, s.155) . . . . . . . . . . . . . . . . . . . . . . . . . 41
76 Determinations and reports to be in writing (NTA, s.156) . . . . . . . . . . . . . . 42
77 Decision or determination conclusive (see NTA, s.157) . . . . . . . . . . . . . . . 42
Division 5--Appeals
78 Appeals to Land Appeal Court from decisions and determinations
of Tribunal (see NTA, s.161) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
79 Operation and implementation of decision or determination
subject to appeal (NTA, s.162) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
80 Land Appeal Court may prohibit disclosure of evidence etc. (see
NTA, s.85) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Division 6--Offences
81 Failure of witness to attend (NTA, s.163) . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
82 Refusal to be sworn or answer questions etc. (see NTA, ss.164
and 166) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
83 Giving of false or misleading evidence (see NTA, s.165) . . . . . . . . . . . . . . 45
84 Producing false or misleading document etc. (see NTA, s.167) . . . . . . . . . 45
85 Contravention of direction prohibiting disclosure of evidence
(NTA, s.168) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
86 Contempt of Tribunal (NTA, s.169) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Division 7--Miscellaneous
87 Sending of documents to the Land Appeal Court (NTA, s.170) . . . . . . . . . 46
5
Native Title (Queensland)
88 Return of documents etc. at end of proceeding (NTA, s.171) . . . . . . . . . . . 46
89 Protection of members etc. (see NTA, s.172) . . . . . . . . . . . . . . . . . . . . . . . . 47
90 Confidential information not to be disclosed (see NTA, s.173) . . . . . . . . . . 47
91 Fees for persons giving evidence (NTA, s.174) . . . . . . . . . . . . . . . . . . . . . . 48
PART 9--PROVISIONS ABOUT THE TRIBUNAL
Division 1--Membership
92 Members of the Tribunal (see NTA, s.103) . . . . . . . . . . . . . . . . . . . . . . . . . . 49
93 Presidential and non-presidential members (see NTA, s.103) . . . . . . . . . . . 49
94 Appointment of members of Tribunal (see NTA, s.104) . . . . . . . . . . . . . . . . 49
95 Qualifications for appointment (see NTA, s.103) . . . . . . . . . . . . . . . . . . . . . 49
96 Appointment as member of Land Tribunal not affected . . . . . . . . . . . . . . . . 50
97 Acting member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Division 2--Provisions about District Court Judges
98 Application of Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
99 Appointment of District Court Judge as member not to affect
tenure etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
100 Termination of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
101 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Division 3--Provisions about other members
102 Application of Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
103 Duration of appointment (NTA, s.108(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
104 Terms of appointment (NTA, ss.107 and108(4)) . . . . . . . . . . . . . . . . . . . . . . 52
105 Leave of absence (see NTA, s.110) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
106 Resignation (NTA, s.111) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
107 Disclosure of interests (NTA, s.115) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
108 Termination of appointment (see NTA, s.112) . . . . . . . . . . . . . . . . . . . . . . . 53
Division 4--Organisation of Tribunal
109 Arrangement of business (NTA, s.116) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
110 Constitution of Tribunal for exercise of powers (NTA, s.117) . . . . . . . . . . . 54
111 Reconstitution of Tribunal (NTA, s.118) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
112 Member presiding (NTA, s.119) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
113 Places of sitting (NTA, s.120) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
6
Native Title (Queensland)
Division 5--Registrar and other officers and staff of Tribunal
114 Appointment of Registrar (see NTA, s.88) . . . . . . . . . . . . . . . . . . . . . . . . . . 56
115 Powers of Registrar--helping the President (NTA, s.89) . . . . . . . . . . . . . . . 56
116 Powers of Registrar--applications (NTA, s.90) . . . . . . . . . . . . . . . . . . . . . . 56
117 Powers of Registrar--Native Title Register (NTA, s.91) . . . . . . . . . . . . . . . 56
118 Delegation by Registrar (NTA, s.92) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
119 Disclosure of interests by Registrar (NTA, s.99) . . . . . . . . . . . . . . . . . . . . . . 56
120 Deputy Registrars and staff of the Tribunal (NTA, s.123) . . . . . . . . . . . . . . 57
121 Engagement of consultants etc. (NTA, s.125) . . . . . . . . . . . . . . . . . . . . . . . . 57
Division 6--Assessors
122 Assessors (see NTA, s.76) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
123 Appointment of assessors (see NTA, s.203) . . . . . . . . . . . . . . . . . . . . . . . . . 57
124 Qualifications for appointment (see NTA, s.203) . . . . . . . . . . . . . . . . . . . . . 58
125 Duration of appointment (see NTA, s.203) . . . . . . . . . . . . . . . . . . . . . . . . . . 58
126 Terms of appointment (see NTA, s.203) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
127 Leave of absence (see NTA, s.203) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
128 Resignation (NTA, s.203) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
129 Disclosure of interests (NTA, s.203) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
130 Termination of appointment (see NTA, s.203) . . . . . . . . . . . . . . . . . . . . . . . 59
Division 7--Miscellaneous administrative matters
131 Management of administrative affairs of Tribunal (NTA,
ss.121(1) and 122) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
132 Delegation by President to members (NTA, s.106) . . . . . . . . . . . . . . . . . . . 60
133 Annual report (see NTA, s.126) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
134 Proceedings arising out of administration of Tribunal (NTA, s.129) . . . . . . 60
PART 10--NATIVE TITLE REGISTER
135 Meaning of "claim" (NTA, s.176) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
136 Native Title Register (NTA, ss.177 and 184) . . . . . . . . . . . . . . . . . . . . . . . . 61
137 Contents of the register (NTA, ss.178 and 185) . . . . . . . . . . . . . . . . . . . . . . 61
138 Inspection of the register (NTA, ss.179 and 186) . . . . . . . . . . . . . . . . . . . . . 62
139 Parts of the register may be kept confidential (NTA, ss.180 and 187) . . . . 62
140 Keeping the register (NTA, ss.182 and 189) . . . . . . . . . . . . . . . . . . . . . . . . . 63
141 Register may be located in land registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7
Native Title (Queensland)
142 Proper officer to notify Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
143 Registrar to inform National Registrar of applications etc. (NTA,
s.236(2)(i)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
PART 11--MISCELLANEOUS
144 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
145 Regulation making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
146 Attachment--Commonwealth Native Title Act . . . . . . . . . . . . . . . . . . . . . . 64
PART 12--INTERIM PROVISIONS
Division 1--Object of Part
147 Object . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Division 2--Compulsory acquisition
148 Native title rights and interests may be acquired (NTA, s.22(3),
(5) and (6)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
149 Effect of acquisition on native title (NTA, s.22(3)(a)) . . . . . . . . . . . . . . . . 66
150 Acquisition to be on just terms (NTA, ss.238 (definition
"Compulsory Acquisition Act") and 22(3)(b)) . . . . . . . . . . . . . . . . . . . . . . . 66
151 Requests for non-monetary compensation (NTA, s.238 (definition
"Compulsory Acquisition Act")) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Division 3--Mining
152 Native title holders are owners for State Mining Acts . . . . . . . . . . . . . . . . . 67
153 State Mining Acts apply with prescribed changes . . . . . . . . . . . . . . . . . . . . 67
Division 4--Other interim provisions
154 Native title holders are owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
155 Interim regulation making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
156 Expiry of Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
PART 13--AMENDMENT OF ACTS
Division 1--Amendment of Aboriginal Land Act 1991
157 Amended Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
158 Amendment of s.1.03 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
159 Insertion of new s.1.04A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
1.04A Meaning of "native title interests" . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
160 Amendment of s.2.13 (Lands that are available Crown land--general) . . . 70
161 Amendment of s.3.06 (Existing interests) . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
162 Amendment of s.5.08 (Existing interests) . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8
Native Title (Queensland)
163 Insertion of new s.8.26A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8.26A Tribunal must refer certain matters to Native Title Tribunal . . . . . . 70
164 Insertion of new s.8.30A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
8.30A Evidence and other findings in other proceedings . . . . . . . . . . . . . . . 71
Division 2--Amendment of Torres Strait Islander Land Act 1991
165 Amended Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
166 Amendment of s.1.04 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
167 Insertion of new s.1.05A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
1.05A Meaning of "native title interests" . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
168 Amendment of s.2.10 (Lands that are available Crown land--general) . . . 72
169 Amendment of s.3.06 (Existing interests) . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
170 Amendment of s.5.08 (Existing interests) . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
171 Insertion of new s.8.26A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
8.26A Tribunal must refer certain matters to Native Title Tribunal . . . . . . 73
172 Insertion of new s.8.30A-- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
8.30A Evidence and other findings in other proceedings . . . . . . . . . . . . . . . 74
Division 3--Amendment of Land Act 1962
173 Amended Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
174 Amendment of s.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
175 Replacement of s.33A (Non-application of certain provisions of
Act to members of Land Tribunal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
33A Non-application of certain provisions of Act to members
of Native Title and Land Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . 75
176 Amendment of s.44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
1993
A BILL
FOR
An Act about native title
10
Native Title (Queensland)
Preamble-- 1
(1) Before European settlement, land in what is now the State of 2
Queensland had been occupied, used and enjoyed since time immemorial 3
by Aboriginal people in accordance with Aboriginal tradition, and was 4
occupied, used and enjoyed by Torres Strait Islanders in accordance with 5
Island custom. 6
(2) Land is of spiritual, social, historical, cultural and economic 7
importance to Aboriginal people and Torres Strait Islanders. 8
(3) After European settlement many Aboriginal people were 9
dispossessed and dispersed. 10
(4) However, some Aboriginal people and many Torres Strait Islanders 11
have maintained their ancestors' traditional or customary affiliation with 12
particular areas. 13
(5) The High Court of Australia has-- 14
· rejected the doctrine that Australia was terra nullius (land 15
belonging to no-one) at the time of European settlement; and 16
· held that the common law of Australia recognises native title 17
rights of Australia's indigenous inhabitants. 18
(6) The Commonwealth Government has proposed legislation to provide 19
a national scheme for the recognition and protection of native title and for its 20
coexistence with the existing land management systems. 21
(7) It is the intention of the Parliament that Queensland should participate 22
in the national scheme proposed by the Commonwealth Government. 23
11
Native Title (Queensland)
The Parliament of Queensland enacts-- 1
PART 1--PRELIMINARY 2
title 3
Short
Clause1. This Act may be cited as the Native Title (Queensland) Act 1993. 4
5
Commencement
Subject to subsections (2) and (3), this Act commences on a 6
Clause2.(1)
day to be fixed by proclamation. 7
(2) The following sections are taken to have commenced immediately 8
after the commencement of section 1.03 of the Aboriginal Land Act 1991-- 9
· section 157 (Amended Act) 10
· section 158 (Amendment of s.1.03 (Definitions)) 11
· section 159 (Insertion of new s.1.04A (Meaning of "native title 12
interests")) 13
· section 160 (Amendment of s.2.13 (Lands that are available 14
Crown land--general)) 15
· section 161 (Amendment of s.3.06 (Existing interests)) 16
· section 162 (Amendment of s.5.08 (Existing interests)). 17
(3) The following sections are taken to have commenced immediately 18
after the commencement of section 1.04 of the Torres Strait Islander Land 19
Act 1991-- 20
· section 165 (Amended Act) 21
· section 166 (Amendment of s.1.04 (Definitions)) 22
· section 167 (Insertion of new s.1.05A (Meaning of "native title 23
interests")) 24
· section 168 (Amendment of s.2.10 (Lands that are available 25
Crown land--general)) 26
12
Native Title (Queensland)
· section 169 (Amendment of s.3.06 (Existing interests)) 1
· section 170 (Amendment of s.5.08 (Existing interests)). 2
of Act 3
Objects
Clause3.(1) The main objects of the Commonwealth Native Title Act are-- 4
(a) to provide for the recognition and protection of native title; and 5
(b) to establish ways in which future dealings affecting native title 6
may proceed and to set standards for the dealings; and 7
(c) to establish a mechanism for determining claims to native title; 8
and 9
(d) to provide for, or permit, the validation of past acts invalidated 10
because of the existence of native title. 11
(2) The main objects of this Act are-- 12
(a) in accordance with the Commonwealth Native Title Act, to 13
validate past acts invalidated because of the existence of native 14
title and to confirm certain rights; and 15
(b) to ensure that Queensland law is consistent with standards set by 16
the Commonwealth Native Title Act for future dealings affecting 17
native title; and 18
(c) to establish State-based mechanisms for deciding claims to native 19
title that are complementary to, and consistent with, the 20
mechanisms established by the Commonwealth Native Title Act. 21
22
Definitions
In this Act-- 23
Clause4.
"accepted application" means an application accepted under section 33 24
(Action to be taken about applications); 25
"accepted application notice" means a notice given under section 35(2)(a) 26
(Action to be taken about accepted applications); 27
"alternative provisions" means alternative provisions to the provisions of 28
Part 2 (Native title), Division 3 (Future acts and native title), 29
13
Native Title (Queensland)
Subdivision B (Right to negotiate) of the Commonwealth Native Title 1
Act; 2
"claimant application" means a native title determination application made 3
by a person or persons claiming to hold native title for an area; 4
"Commonwealth Native Title Act" means the Native Title Act 1993 5
(Cwlth);1 6
"compensation application" means an application under section 48 7
(Bodies that may determine application) of the Commonwealth Native 8
Title Act; 9
"Land Tribunal" means the Land Tribunal established under the 10
Aboriginal Land Act 1991 or the Torres Strait Islander Land 11
Act 1991; 12
"lawyer" means a legal practitioner of the High Court or the Supreme 13
Court of the State, another State or a Territory; 14
"mediation conference" means a conference under section 41 (Mediation 15
conference to be held); 16
"member" means a member of the Tribunal, and includes the President 17
and a Deputy President; 18
"National Registrar" means the Native Title Registrar under the 19
Commonwealth Native Title Act; 20
"native title determination application" means an application for a 21
determination of native title for an area for which there is no approved 22
determination of native title; 23
"Native Title Register" means the Queensland Native Title Register; 24
"non-claimant application" means a native title determination application 25
that is not made by a person or persons claiming to hold native title for 26
an area; 27
1 At the time of the introduction of this Bill into the Legislative Assembly, the
Native Title Bill 1993 had been passed by the House of Representatives, but not
by the Senate. Until the enactment of the Bill, a reference to the
Commonwealth Native Title Act is a reference to the Native Title Bill 1993
(Cwlth). To aid readers of this Bill, a copy of the Commonwealth Bill is
attached to this Bill.
14
Native Title (Queensland)
"NTA", in a section heading, means the Commonwealth Native Title Act; 1
"potentially affected person" for an application means a person 2
mentioned in section 35(2)(a) (Action to be taken about accepted 3
applications); 4
"President" means the President of the Tribunal; 5
"presidential member" means a presidential member of the Tribunal; 6
"registered native title holder" includes a body corporate registered on the 7
Native Title Register as a holder of native title; 8
"Registrar" means the Queensland Native Title Registrar; 9
"revised native title determination application" means an application to 10
revoke or vary an approved determination of native title on a ground 11
set out in section 12(5) (Approved determinations of native title) of the 12
Commonwealth Native Title Act; 13
"right to negotiate application" means an application mentioned in 14
section 44(2) or (3) (Right to negotiate applications); 15
"special issue" means an issue about which the State Minister has, under 16
section 50 (Special inquiries), directed the Tribunal to hold an inquiry; 17
"State Compulsory Acquisition Act" means any of the following Acts-- 18
· the Acquisition of Land Act 1967 19
· the State Development and Public Works Organization Act 1971 20
· an Act prescribed by regulation; 21
"State Mining Act" means any of the following Acts-- 22
· the Mineral Resources Act 1989 23
· the Petroleum Act 1923 24
· an Act prescribed by regulation; 25
"Tribunal" means the Queensland Native Title Tribunal; 26
"unopposed application" means an application covered by either of the 27
following sections-- 28
· section 39 (Applications that are unopposed) 29
· section 40 (Power of Tribunal if parties reach agreement); 30
15
Native Title (Queensland)
"Wardens Court" means a Wardens Court established under the Mineral 1
Resources Act 1989. 2
and expressions used in Commonwealth Native Title Act 3
Words
Clause5.(1) Words and expressions used in the Commonwealth Native Title 4
Act and this Act have the same meanings in this Act as they have in the 5
Commonwealth Native Title Act.2 6
(2) Subsection (1) applies except so far as the context or subject matter 7
otherwise indicates or requires. 8
(3) However, subsection (1) does not apply to a word or expression 9
defined in section 4 (Definitions). 10
binds all persons 11
Act
Clause6. This Act binds all persons, including the State. 12
ART 2--VALIDATION AND ITS EFFECTS 13
P
1--General 14
Division
of Part 15
Object
Clause7. The object of this Part is to-- 16
(a) validate, under section 18 of the Commonwealth Native Title Act, 17
2 Section 207 of the Commonwealth Native Title Act ("NTA") sets out a list of
definitions used in that Act.
16
Native Title (Queensland)
past acts attributable to the State;3 and 1
(b) provide for the effects of the validation. 2
of past acts attributable to State (NTA, s.18) 3
Validation
Clause8. Every past act attributable to the State is valid, and is taken always 4
to have been valid. 5
of remaining provisions of Part 6
Application
The remaining provisions of this Part apply to a past act 7
Clause9.(1)
attributable to the State that is validated by section 8. 8
(2) Division 2 deals with the effect of the validation on native title. 9
(3) Division 3 deals with other effects of the validation. 10
Division 2--Effect of validation on native title 11
A past acts that are not public works (NTA, ss.18 and 12
Category
14(a)) 13
Clause10.(1) This section applies if the past act is a category A past act,4 but 14
is not a category A past act to which section 214(4) (which deals with 15
public works) of the Commonwealth Native Title Act applies. 16
(2) The past act extinguishes native title. 17
3 An "act" is defined in s.211 NTA.
A "past act" is defined in s.213 NTA.
An act "attributable" to the State is defined in s.224 NTA.
4 "Category A past act" is defined in s.214 NTA. This category covers freehold
grants, some leasehold grants (commercial, agricultural, pastoral and residential
leases) and public works. "Lease" and the various types of leases are defined in
ss.226 to 234 NTA. "Public work" is defined in s.238 NTA.
17
Native Title (Queensland)
A past acts that are public works (NTA, ss.18 and 14(b)) 1
Category
This section applies if the past act is a category A past act to 2
Clause11.(1)
which section 214(4) of the Commonwealth Native Title Act applies. 3
(2) The past act extinguishes native title in relation to the land or waters 4
on which the public work concerned (on completion of its construction or 5
establishment) was or is situated. 6
(3) If section 214(4)(a) (which deals with public works completed after 7
1 January 1994) of the Commonwealth Native Title Act applies to the past 8
act, the extinguishment is taken to have happened on 1 January 1994. 9
category B past acts (NTA, ss.18 and 14(c)) 10
Inconsistent
Clause12.(1) This section applies if the past act is a category B past act5 that 11
is wholly or partly inconsistent with the continued existence, enjoyment or 12
exercise of the native title rights and interests concerned. 13
(2) The past act extinguishes the native title to the extent of the 14
inconsistency. 15
C and D past acts (NTA, ss.18 and 14(d)) 16
Category
This section applies if the past act is a category C or D past 17
Clause13.(1)
act.6 18
(2) The non-extinguishment principle applies to the past act.7 19
5 "Category B past act" is defined in s.215 NTA. This category covers leasehold
grants (other than leases that are category A past acts and mining leases).
6 "Category C past act" is defined in s.216 NTA. This category deals with the
grant of mining leases. "Mining lease" is defined in s.230 NTA and "mine" in
s.238 NTA.
"Category D past act" is defined in s.217 NTA. It is the residual category of
past acts.
7 The effect of the "non-extinguishment principle" is set out in s.223 NTA.
18
Native Title (Queensland)
Division 3--Other effects of validation 1
of beneficial reservations and conditions (NTA, ss.18 2
Preservation
and 15) 3
Clause14.(1) This section applies if-- 4
(a) the past act contains a reservation or condition for the benefit of 5
Aboriginal peoples or Torres Strait Islanders; or 6
(b) the doing of the past act would affect rights or interests of 7
Aboriginal peoples or Torres Strait Islanders (whether arising 8
under legislation, at common law or in equity and whether or not 9
rights of usage). 10
(2) Section 8 (Validation of past acts attributable to State) does not affect 11
a reservation or condition mentioned in paragraph (a) or rights or interests 12
mentioned in paragraph (b). 13
(NTA, ss.19 and 16) 14
Compensation
Clause15.(1) Native title holders are entitled to compensation under this Act 15
because of the validation of a past act attributable to the State if they would 16
be entitled to compensation under section 16(1) or (2) (Entitlement to 17
compensation) of the Commonwealth Native Title Act on the assumption 18
that section 16 applies to acts attributable to the State. 19
(2) The compensation is payable by the State. 20
(3) Part 2 (Native title), Division 5 (Determination of compensation for 21
acts affecting native title etc.) of the Commonwealth Native Title Act applies 22
to the determination of the compensation payable. 23
(4) Under section 26(2) (Conferral of jurisdiction as recognised bodies 24
allowed), jurisdiction may be conferred on the Native Title Tribunal and 25
Wardens Courts to determine the compensation. 26
19
Native Title (Queensland)
ART 3--CONFIRMATION OF CERTAIN RIGHTS 1
P
of Part 2
Object
The object of this Part is to confirm, in accordance with 3
Clause16.
section 197 (Confirmation of ownership of natural resources, access to 4
beaches etc.) of the Commonwealth Native Title Act-- 5
(a) the ownership of natural resources and certain water and fishing 6
access rights; and 7
(b) public access to and enjoyment of beaches and certain other 8
places. 9
of ownership of natural resources etc. (NTA, s.197(1)) 10
Confirmation
The existing ownership of all natural resources owned by the 11
Clause17.(1)
State is confirmed. 12
(2) All existing rights of the State to use, control and regulate the flow of 13
water are confirmed. 14
(3) All existing fishing access rights under State law are confirmed to 15
prevail over other public or private fishing rights. 16
17
Examples for subsection (1)
18
Example 1--Minerals and petroleum
19
With the exception of minerals on certain freehold titles granted between 1860
20
and 1910, the State owns all minerals (e.g. bauxite, coal and gold) and petroleum in
21
Queensland--see s.1.9 Mineral Resources Act 1989 and earlier provisions and s.5
22
Petroleum Act 1923. This ownership is confirmed by subsection (1).
23
Example 2--Quarry material
24
The State owns quarry material on certain lands in Queensland, including all
25
Crown lands--see s.45 Forestry Act 1959. This ownership is confirmed by
26
subsection (1).
27
Example 3--Fauna
28
With limited exceptions, the State owns all indigenous fauna in Queensland--see
29
s.7 Fauna Conservation Act 1974. This ownership is confirmed by subsection (1).
20
Native Title (Queensland)
of access to beaches etc. (NTA, s.197(2) and (3)) 1
Confirmation
Existing public access to and enjoyment of the following 2
Clause18.(1)
places is confirmed-- 3
(a) waterways; 4
(b) beds and banks or foreshores of waterways; 5
(c) coastal waters; 6
(d) beaches; 7
(e) areas that were public places at the end of 31 December 1993. 8
(2) Under section 197(3) (Confirmation of ownership of natural 9
resources, access to beaches etc.) of the Commonwealth Native Title Act, 10
the confirmation made by subsection (1) does not extinguish native title 11
rights and interests and does not affect a conferral of land or an interest in 12
land under a law that confers benefits only on Aboriginal peoples or Torres 13
Strait Islanders. 14
ART 4--QUEENSLAND NATIVE TITLE TRIBUNAL 15
P
AND REGISTRAR 16
1--The Tribunal 17
Division
Native Title Tribunal (NTA, s.100) 18
Queensland
Clause19. The Queensland Native Title Tribunal is established. 19
unctions (NTA, s.101) 20
F
The Tribunal has the functions given to it under this Act and 21
Clause20.(1)
any functions given to it under another Act or the Commonwealth Native 22
Title Act. 23
(2) The Tribunal may conduct research for the purpose of performing its 24
functions. 25
21
Native Title (Queensland)
(3) Without limiting subsection (2), the Tribunal may conduct research 1
about-- 2
(a) the history of interests in land or waters within the jurisdictional 3
limits of the State; or 4
(b) relevant anthropological or linguistic issues. 5
way of operating (NTA, s.102) 6
Tribunal's
The Tribunal must pursue the objective of performing its 7
Clause21.(1)
functions in a fair, just, economical, informal and prompt way. 8
(2) In conducting inquiries, the Tribunal-- 9
(a) must take account of relevant cultural and customary concerns of 10
Aboriginal peoples and Torres Strait Islanders; and 11
(b) is not bound by technicalities, legal forms or rules of evidence. 12
about native title in other courts 13
Questions
If, in a proceeding in the Supreme Court, a District or 14
Clause22.(1)
Magistrates Court or another court (including a proceeding about a matter 15
remitted or referred to the court), the existence, nature or extent of, or the 16
persons holding, native title is in issue, the court may adjourn the 17
proceeding to allow a native title determination application to be made to the 18
Tribunal. 19
(2) The court may act under subsection (1) on its own initiative or on 20
application by a party to the proceeding. 21
Division 2--The Registrar 22
(NTA, s.88(1)) 23
Registrar
Clause23. There is a Queensland Native Title Registrar. 24
of Registrar 25
Functions
The Registrar has the functions given to the Registrar under this 26
Clause24.
22
Native Title (Queensland)
Act and any functions given to the Registrar under the Commonwealth 1
Native Title Act. 2
PART 5--RECOGNISED AND ARBITRAL BODIES 3
of Part (NTA, esp. ss.236 and 26) 4
Purpose
The purpose of this Part is to provide for the Tribunal and 5
Clause25.
Wardens Courts to be recognised State/Territory bodies, and arbitral bodies, 6
for Queensland. 7
of jurisdiction as recognised bodies allowed (NTA, esp. 8
Conferral
s.48(3)) 9
It is the intention of the Parliament that the Tribunal and 10
Clause26.(1)
Wardens Courts should be recognised State/Territory bodies. 11
(2) The Tribunal may have jurisdiction conferred on it as a recognised 12
State/Territory body by the Commonwealth Native Title Act, including 13
jurisdiction to determine compensation in accordance with Part 2, 14
Division 5 of that Act. 15
(3) Wardens Courts may have jurisdiction conferred on them as 16
recognised State/Territory bodies by the Commonwealth Native Title Act. 17
(4) Jurisdiction may be exercised by a Wardens Court only to determine 18
compensation in accordance with Part 2, Division 5 of the Commonwealth 19
Native Title Act for matters arising under or in relation to a State Mining 20
Act. 21
and Wardens Courts may be arbitral bodies (NTA, esp. 22
Tribunal
s.26(1)) 23
The Tribunal and Wardens Courts may be arbitral bodies 24
Clause27.(1)
under Part 2, Division 3, Subdivision B of the Commonwealth Native Title 25
Act for acts of the State, other than acts in relation to-- 26
(a) a Commonwealth place (within the meaning of the 27
23
Native Title (Queensland)
Commonwealth Places (Application of Laws) Act 1970 (Cwlth)); 1
or 2
(b) any place outside the jurisdictional limits of the State. 3
(2) However, a Wardens Court may be an arbitral body only for matters 4
arising under or in relation to a State Mining Act. 5
ART 6--HOLDING OF NATIVE TITLE 6
P
title to be held by body corporate (NTA, s.53) 7
Native
If-- 8
Clause28.(1)
(a) the Tribunal proposes to make an approved determination of 9
native title; and 10
(b) the determination is that native title exists at the time of making 11
the determination; 12
the Tribunal must, at the same time as it makes the determination, 13
determine the prescribed body corporate that will hold the rights and 14
interests from time to time comprising the native title. 15
(2) The determination must be made in the same way as the National 16
Native Title Tribunal would be required to make a similar determination 17
under section 53 (Native title to be held by body corporate) of the 18
Commonwealth Native Title Act. 19
(3) On the making of the determination, the prescribed body corporate 20
holds the rights and interests from time to time comprising the native title, 21
in accordance with the regulations under the Commonwealth Native Title 22
Act, for the common law holders in the same way as the body corporate 23
would be required to hold them if the determination had been made under 24
the Commonwealth Native Title Act. 25
(4) Subsections (2) and (3) apply subject to any regulation made for this 26
section. 27
(5) An agreement made by the body corporate about the native title binds 28
the common law holders. 29
24
Native Title (Queensland)
ART 7--APPLICATIONS ABOUT NATIVE TITLE 1
P
Division 1--Native title and compensation applications 2
title and compensation applications (NTA, s.55(1)) 3
Native
This section sets out applications that may be made to the 4
Clause29.(1)
Registrar under this Division and the persons who may make the 5
applications. 6
(2) A native title determination application may be made by-- 7
(a) a person or persons claiming to hold the native title either alone or 8
with others; or 9
(b) a person who holds an interest in the entire area for which the 10
determination is sought; or 11
(c) the Commonwealth Minister; or 12
(d) the State Minister. 13
(3) A revised native title determination application may be made by-- 14
(a) the registered native title holder; or 15
(b) the Commonwealth Minister; or 16
(c) the State Minister; or 17
(d) the National Registrar; or 18
(e) the Registrar. 19
(4) A compensation application may be made by-- 20
(a) the registered native title holder (if any); or 21
(b) a person or persons claiming to be entitled to the compensation 22
either alone or with others. 23
(5) An application mentioned in subsection (2) or (3) may only be made 24
to the Registrar about an area within the jurisdictional limits of the State. 25
(6) An application mentioned in subsection (4) may only be made to the 26
Registrar about an act attributable to the State. 27
25
Native Title (Queensland)
and contents of applications (NTA, s.55(2)) 1
Form
An application under this Division must be in the form 2
Clause30.(1)
approved by the Registrar and be given to the Registrar. 3
(2) The application must contain the information about the matters to be 4
determined as is prescribed by regulation. 5
to hold title with other persons (NTA, s.55(3)) 6
Claims
An application under this Division made by a person or 7
Clause31.(1)
persons claiming to hold native title, or to be entitled to compensation, with 8
others must describe or otherwise identify the others. 9
(2) However, it is not necessary to name them or to say how many there 10
are. 11
and fees to accompany applications (NTA, s.56) 12
Material
Clause32.(1) A native title determination application by a person or persons 13
claiming to hold the native title for an area (a "claimant application") 14
must-- 15
(a) be accompanied by a declaration by the applicant that the 16
applicant-- 17
(i) has conducted searches of all official title registers, including 18
the Native Title Register, that are relevant to title in the land 19
or waters; and 20
(ii) believes that native title has not been extinguished for part of 21
the area; and 22
(iii) believes that none of the area is covered by an entry in the 23
Native Title Register; and 24
(b) contain a list of all official title registers searched; and 25
(c) state the name and address of the person who will become the 26
registered native title claimant. 27
(2) An application under this Division must also be accompanied by the 28
documents and fee prescribed by regulation. 29
26
Native Title (Queensland)
to be taken about applications (NTA, s.57) 1
Action
Clause33.(1) In this section-- 2
"application requirement provisions" means the following sections-- 3
· section 29 (Native title and compensation applications) 4
· section 30 (Form and contents of applications) 5
· section 31 (Claims to hold title with other persons) 6
· section 32 (Material and fees to accompany applications). 7
(2) If an application complies with the application requirement 8
provisions, the Registrar must accept the application unless the Registrar 9
considers that-- 10
(a) for a claimant application--native title for part of the area covered 11
by the application (the "application area") has been 12
extinguished; or 13
(b) for a native title determination application--part of the application 14
area is covered by an entry in the Native Title Register dealing 15
with a determination or decision; or 16
(c) for a claimant application or compensation application--the 17
application does not contain enough information about a physical 18
connection, that may be required by the common law concept of 19
native title, to exist or to have existed between the applicant or the 20
applicant's ancestors and the application area; or 21
(d) for a non-claimant application--the application area is covered by 22
an entry in the Native Title Register dealing with a claim; or 23
(e) the geographical boundaries of the application area are not 24
sufficiently described in the application; or 25
(f) the application is frivolous or vexatious. 26
(3) If the Registrar accepts the application, it becomes an "accepted 27
application". 28
(4) If the Registrar does not accept an application, the Registrar must give 29
the application to a presidential member of the Tribunal. 30
(5) The presidential member must accept the application unless the 31
presidential member considers that a paragraph of subsection (2) applies to 32
27
Native Title (Queensland)
the application. 1
(6) If a presidential member accepts the application, it becomes an 2
"accepted application". 3
application powers (NTA, s.58) 4
General
Clause34.(1) In this section-- 5
"general powers provisions" means the following sections-- 6
· section 67 (Tribunal may prohibit disclosure of evidence etc.) 7
· section 68 (Powers of Tribunal to take evidence) 8
· section 69 (Tribunal may authorise someone else to take 9
evidence) 10
· section 70 (Interpreters) 11
· section 71 (Retention and copying of documents etc.). 12
(2) The Registrar may, with the President's approval, exercise powers 13
under the general powers provisions in relation to an application. 14
(3) A presidential member may also exercise powers under the general 15
powers provisions in relation to an application. 16
to be taken about accepted applications (NTA, s.59) 17
Action
Clause35.(1) If an application becomes an accepted application, the Registrar 18
must-- 19
(a) give notice of the application to all persons whose interests may 20
be affected by a determination on the application; and 21
(b) for a claimant application--record details of the application in the 22
Native Title Register. 23
(2) The Registrar is taken to have given notice to all persons whose 24
interests may be affected by a determination on the application if the 25
Registrar-- 26
(a) gives notice (an "accepted application notice") containing 27
details of the application to the following persons (the 28
"potentially affected persons")-- 29
28
Native Title (Queensland)
(i) any registered native title claimant for the area covered by the 1
application; 2
(ii) the Commonwealth Minister; 3
(iii) the State Minister; 4
(iv) any registered native title holder for the area; 5
(v) any representative Aboriginal/Torres Strait Islander body for 6
the area; 7
(vi) anyone else whose interests may be affected by a 8
determination on the application and of whom the Registrar 9
is aware; and 10
(b) notifies the public of the application in the way prescribed by 11
regulation. 12
(3) An application notice must also state that-- 13
(a) if the application is a non-claimant application--the application 14
will be taken to be unopposed unless a claimant application for 15
part of the area covered by the non-claimant application is given 16
to the Registrar within 2 months after the application notice is 17
given; or 18
(b) in any other case--a person who wants to be a party to the 19
application must give the Registrar written notice within 2 months 20
after the application notice is given. 21
(4) If accepted application notices for an application are given on different 22
days, each notice is taken to have been given on the day the last notice for 23
the application is given. 24
procedure for non-claimant applications (NTA, s.60) 25
Special
A non-claimant application is taken to have been dismissed 26
Clause36.(1)
if-- 27
(a) a claimant application for part of the area covered by the 28
non-claimant application is given to the Registrar within 2 months 29
after the Registrar gave the accepted application notices for the 30
non-claimant application; and 31
(b) the claimant application is accepted (whether initially or on appeal 32
29
Native Title (Queensland)
and whether or not within the 2 month period). 1
(2) If a claimant application is given to the Registrar, all reasonable steps 2
must be taken, within 1 month after the application is given, to decide 3
whether to accept the application. 4
(3) If the non-claimant application is not taken to have been dismissed 5
under subsection (1), the application is taken to be unopposed for section 39 6
(Applications that are unopposed). 7
(NTA, s.61) 8
Parties
Clause37.(1) The applicant is a party to an application under this Division. 9
(2) Someone else is a party to the application if-- 10
(a) the person is a potentially affected person or the person's interests 11
may be affected by a determination on the application; and 12
(b) within 2 months after the Registrar gave the accepted application 13
notices for the application, the person gives the Registrar written 14
notice that the person wants to be a party to the application. 15
to decide persons whose interests may be affected 16
Tribunal
(NTA, s.62) 17
If it is necessary for this Division to decide whether the 18
Clause38.(1)
interests of a person may be affected by a determination, the issue is to be 19
decided by the Tribunal and, if the Tribunal decides that the interests of a 20
person may be affected, the decision of the Tribunal is conclusive. 21
(2) In making a decision under subsection (1), the Tribunal must be 22
constituted by a presidential member. 23
that are unopposed (NTA, s.63) 24
Applications
If an accepted application is unopposed, the Tribunal may 25
Clause39.(1)
make a determination in, or consistent with, the terms sought by the 26
applicant if-- 27
(a) the Tribunal is satisfied that the applicant has made out a prima 28
facie case for a determination in the terms sought; and 29
30
Native Title (Queensland)
(b) the Tribunal considers that the determination is just and equitable 1
in all the circumstances. 2
(2) The application is "unopposed" if-- 3
(a) at the end of 2 months after the Registrar gave the accepted 4
application notices for the application, the applicant is the only 5
party; or 6
(b) each party gives the Tribunal written notice that the party does not 7
oppose the application; or 8
(c) the application is taken to be unopposed by section 36(3) (Special 9
procedure for non-claimant applications). 10
(3) An application mentioned in subsection (1) is an "unopposed 11
application". 12
of Tribunal if parties reach agreement (NTA, s.64) 13
Power
Clause40.(1) This section applies if-- 14
(a) at the end of 2 months after the Registrar gave the accepted 15
application notices for the application, the parties inform the 16
Tribunal that they have reached agreement about the terms of a 17
determination of the Tribunal on the application; and 18
(b) the terms of the agreement, in writing signed by or for the parties, 19
are given to the Tribunal; and 20
(c) the Tribunal is satisfied that a determination in, or consistent with, 21
the agreed terms would be within the Tribunal's powers and 22
would be just and equitable in all the circumstances; and 23
(d) the Tribunal is satisfied that the applicant has made out a prima 24
facie case for a determination in, or consistent with, the agreed 25
terms. 26
(2) If this section applies, the Tribunal must make a determination in 27
accordance with, or consistent with, the agreed terms. 28
(3) An application mentioned in subsection (1) is also an "unopposed 29
application". 30
31
Native Title (Queensland)
conference to be held (NTA, s.65) 1
Mediation
Clause41.(1) If an accepted application is not an unopposed application, the 2
President must direct the holding of a conference (the "mediation 3
conference") of the parties or their representatives to help in resolving the 4
matter. 5
(2) The mediation conference must be presided over by a member or an 6
assessor. 7
(3) If a member presides over the mediation conference, the member 8
must not take further part in proceedings about the application without the 9
agreement of the parties. 10
of Tribunal if parties reach agreement after mediation 11
Power
conference (NTA, s.66) 12
Clause42.(1) This section applies if-- 13
(a) at the end of a mediation conference the parties inform the 14
Tribunal that they have reached agreement about the terms of a 15
determination of the Tribunal on the application; and 16
(b) the terms of the agreement, in writing signed by or for the parties, 17
are given to the Tribunal; and 18
(c) the Tribunal is satisfied that a determination in, or consistent with, 19
the agreed terms would be within the Tribunal's powers and 20
would be just and equitable in all the circumstances; and 21
(d) the Tribunal is satisfied that the applicant has made out a prima 22
facie case for a determination in, or consistent with, the agreed 23
terms. 24
(2) If this section applies, the Tribunal must make a determination in, or 25
consistent with, the agreed terms. 26
not settled are to be heard by Tribunal (NTA, s.67) 27
Applications
The Tribunal must hear an accepted application if the Tribunal 28
Clause43.
does not make a determination under any of the following sections-- 29
· section 39 (Applications that are unopposed) 30
32
Native Title (Queensland)
· section 40 (Power of Tribunal if parties reach agreement) 1
· section 42 (Power of Tribunal if parties reach agreement after 2
mediation conference). 3
2--Right to negotiate applications 4
Division
to negotiate applications (NTA, s.68(1)) 5
Right
This section sets out the applications that may be made to the 6
Clause44.(1)
Registrar under this Division and the persons who may make the 7
applications. 8
(2) An objection under section 31 (Expedited procedure) of the 9
Commonwealth Native Title Act to inclusion of a statement that an act is an 10
act attracting expedited procedure, or an equivalent objection under any 11
alternative provisions made by a State law, may be made by a native title 12
party. 13
(3) An application for a future act determination under section 33 14
(Application for determination) of the Commonwealth Native Title Act, or 15
an equivalent application under any alternative provisions made by a State 16
law, may be made by a negotiation party. 17
(3) An application mentioned in subsection (2) or (3) is a "right to 18
negotiate application". 19
and contents of applications (NTA, s.68(2)) 20
Form
A right to negotiate application must be in the form approved 21
Clause45.(1)
by the Registrar and be given to the Registrar. 22
(2) The application must contain the information about the matters to be 23
determined as is prescribed by regulation. 24
and fees to accompany applications (NTA, s.69) 25
Material
A right to negotiate application must be accompanied by the 26
Clause46.
documents and fee prescribed by regulation. 27
33
Native Title (Queensland)
to be taken about applications (NTA, s.70) 1
Action
Clause47.(1) In this section-- 2
"application requirement provisions" means the following sections-- 3
· section 44 (Right to negotiate applications) 4
· section 45 (Form and contents of applications) 5
· section 46 (Material and fees to accompany applications). 6
(2) If an application complies with the application requirement 7
provisions, the Registrar must accept the application.8 8
Division 3--Miscellaneous 9
to potential applicants (NTA, s.71) 10
Assistance
The Registrar may give reasonable assistance to help people 11
Clause48.(1)
prepare applications and accompanying material. 12
(2) Without limiting subsection (1), the assistance may include-- 13
(a) providing research services; or 14
(b) conducting searches of official title registers, including the Native 15
Title Register. 16
for non-monetary compensation (NTA, s.72) 17
Requests
If, during negotiations about an application under this Part 18
Clause49.
(whether or not during a mediation conference), a person or persons who 19
may be entitled to compensation ask that the whole or part of the 20
compensation should be in a form other than money, the other person or 21
persons involved in the negotiations-- 22
(a) must consider the request; and 23
8 The procedure to be followed for right to negotiate applications is set out in
Part 2, Division 3, Subdivision B of the Commonwealth Native Title Act.
34
Native Title (Queensland)
(b) must negotiate in good faith about the request. 1
2
Example of non-monetary compensation--
3
The transfer of property or the supply of goods or services.
ART 8--INQUIRIES AND DETERMINATIONS BY 4
P
THE TRIBUNAL 5
1--Special inquiries 6
Division
inquiries (NTA, s.130) 7
Special
The State Minister may, by written notice, direct the Tribunal 8
Clause50.(1)
to hold an inquiry about a particular native title issue. 9
(2) Without limiting subsection (1), the issues that an inquiry may cover 10
include-- 11
(a) the effect on Aboriginal peoples and Torres Strait Islanders of the 12
validation of particular past acts; and 13
(b) alternative forms of compensation that could be provided for acts 14
covered by this Act; and 15
(c) action that could be taken to help Aboriginal peoples and Torres 16
Strait Islanders if native title has been extinguished. 17
(3) An issue mentioned in subsection (1) is a "special issue". 18
(NTA, s.131) 19
Notice
The Registrar must notify the public of the inquiry in the way 20
Clause51.
prescribed by regulation. 21
35
Native Title (Queensland)
2--Inquiries generally 1
Division
(NTA, s.132) 2
Inquiries
The Tribunal must hold an inquiry into unopposed applications, 3
Clause52.
right to negotiate applications and special issues. 4
may cover more than 1 matter (NTA, s.133) 5
Inquiries
Clause53. An inquiry may cover more than 1 application or issue. 6
(NTA, s.134) 7
Parties
The parties to an inquiry about an unopposed application are 8
Clause54.(1)
the persons who are the parties under section 37 (Parties). 9
(2) The parties to an inquiry about a right to negotiate application are the 10
Government party, the native title parties and the grantee parties. 11
(3) The parties to an inquiry about a special matter are the State Minister 12
and, with the Tribunal's leave, anyone else who gives the Tribunal written 13
notice before the start of the inquiry that the person wants to be a party. 14
(4) A regulation may make provision about the granting or refusing of 15
leave under subsection (3). 16
to make submissions about evidence (NTA, s.135) 17
Opportunity
The Tribunal must ensure that every party is given a 18
Clause55.(1)
reasonable opportunity-- 19
(a) to present a case and, in particular, to inspect a document to which 20
the Tribunal proposes to have regard in making a determination in 21
the inquiry; and 22
(b) to make submissions about the documents. 23
(2) Subsection (1) is subject to the following sections-- 24
· section 66 (Inquiries to be held in public other than in special 25
circumstances) 26
· section 67 (Tribunal may prohibit disclosure of evidence etc.). 27
36
Native Title (Queensland)
before Tribunal (NTA, s.136) 1
Representation
A party may appear in person or may be represented by someone 2
Clause56.
else. 3
in which questions are to be decided (NTA, s.137) 4
Way
If the members constituting the Tribunal for a particular 5
Clause57.(1)
proceeding are divided in opinion about the decision to be made on a 6
question-- 7
(a) if there is a majority of the same opinion--the question must be 8
decided according to the opinion of the majority; or 9
(b) if there is not a majority of the same opinion--the question must 10
be decided according to the opinion of the presiding member 11
(2) However, a question of law arising in an inquiry (including the 12
question whether a particular question is a question of law) must be decided 13
in accordance with the opinion of the presiding member. 14
of questions of law to Land Appeal Court (NTA, s.138) 15
Reference
The Tribunal may, of its own initiative or at the request of a 16
Clause58.(1)
party, refer a question of law arising in an inquiry to the Land Appeal Court 17
for a decision. 18
(2) A question of law may be referred only if the presiding member 19
agrees. 20
(3) If a question of law arising in an inquiry has been referred to the Land 21
Appeal Court, the Tribunal must not, in the inquiry-- 22
(a) give a determination to which the question is relevant while the 23
reference is pending; or 24
(b) proceed in a way, or make a determination, that is inconsistent 25
with the Land Appeal Court's opinion on the question. 26
and findings in other proceedings (NTA, s.139) 27
Evidence
Clause59. In an inquiry, the Tribunal may-- 28
(a) receive into evidence the transcript of evidence in another 29
37
Native Title (Queensland)
proceeding before-- 1
(i) a court; or 2
(ii) the Tribunal; or 3
(iii) the National Native Title Tribunal; or 4
(iv) a Land Tribunal; or 5
(v) a recognised State/Territory body; or 6
(vi) another entity; 7
and draw conclusions of fact from the transcript; and 8
(b) receive into evidence a document or other thing introduced into 9
evidence in another proceeding before a court or other entity and 10
draw conclusions from the document or thing; and 11
(c) adopt findings, decisions, determinations or judgments of a court 12
or other entity. 13
of Tribunal if proceeding is frivolous or vexatious (NTA, s.140) 14
Power
The Tribunal may dismiss an application if the Tribunal is 15
Clause60.(1)
satisfied the application is frivolous or vexatious. 16
(2) The application may be dismissed at any stage of the inquiry. 17
of Tribunal if prima facie case not made out (NTA, s.141) 18
Power
The Tribunal may dismiss an application if it is satisfied that 19
Clause61.(1)
the applicant cannot make out a prima facie case on the application. 20
(2) The application may be dismissed at any stage of the inquiry. 21
Division 3--Conferences and hearings 22
(NTA, s.142) 23
Conferences
The President may direct the holding of a conference of the 24
Clause62.(1)
parties or their representatives to help in resolving issues. 25
(2) The conference must be presided over by a member, an assessor or 26
38
Native Title (Queensland)
an officer of the Tribunal. 1
(3) At a hearing before the Tribunal, evidence must not be given, and 2
statements must not be made, about anything said or done at a conference 3
unless the parties otherwise agree. 4
(4) Unless the parties otherwise agree, a member who presides over a 5
conference is not entitled to be a member of the Tribunal as constituted for 6
the inquiry. 7
(NTA, s.143) 8
Hearings
Clause63. The Tribunal may hold hearings for an inquiry. 9
of appearance (NTA, s.144) 10
Right
A party to an inquiry has the right to appear at hearings and 11
Clause64.(1)
conferences held for the inquiry. 12
(2) Subsection (1) is subject to section 66 (Inquiries to be held in public 13
other than in special circumstances). 14
part by telephone etc. (NTA, s.145) 15
Taking
A person presiding over a conference under section 62 16
Clause65.
(Conferences), and the Tribunal in a hearing for an inquiry, may allow a 17
person to take part by telephone, closed-circuit television or another form of 18
communication. 19
to be held in public other than in special circumstances 20
Inquiries
(NTA, s.146) 21
Clause66.(1) An inquiry must be held in public. 22
(2) If, when a hearing is in public, a person takes part by a form of 23
communication allowed under section 65 (Taking part by telephone etc.), 24
the Tribunal must take the steps reasonably necessary to ensure the public 25
nature of the hearing is preserved. 26
(3) However, the Tribunal may, of its own initiative or on the application 27
of a party, direct that an inquiry, or a part of an inquiry, be held in private, 28
39
Native Title (Queensland)
and give directions about the persons who may be present. 1
(4) In deciding whether an inquiry or part of an inquiry should be held in 2
private, the Tribunal must have proper regard to relevant cultural and 3
customary concerns of Aboriginal peoples and Torres Strait Islanders. 4
may prohibit disclosure of evidence etc. (NTA, s.147) 5
Tribunal
The Tribunal may direct that evidence given before it, or the 6
Clause67.(1)
contents of a document or other thing produced to it, must not be disclosed, 7
or must not be disclosed other than in the way, and to the persons, that the 8
Tribunal specifies. 9
(2) The Tribunal may make the direction of its own initiative or on 10
application by a party. 11
(3) This section does not limit the Tribunal's powers under section 66 12
(Inquiries to be held in public other than in special circumstances). 13
of Tribunal to take evidence (NTA, s.148) 14
Powers
Clause68.(1) The Tribunal may take evidence on oath or affirmation and, for 15
the purpose of taking evidence, a member of the Tribunal may administer 16
an oath or affirmation. 17
(2) A member of the Tribunal may summon a person to appear before 18
the Tribunal to give evidence and to produce a document or other thing 19
specified in the summons. 20
(3) A party may call witnesses. 21
(4) A person appearing as a witness before the Tribunal may be 22
examined. 23
(5) A person appearing as a witness before the Tribunal may be 24
cross-examined or re-examined only with the Tribunal's leave. 25
(6) If a person takes part by a form of communication allowed under 26
section 65 (Taking part by telephone etc.), the Tribunal may make 27
arrangements for administering an oath or affirmation to the person. 28
40
Native Title (Queensland)
may authorise someone else to take evidence (NTA, s.149) 1
Tribunal
Clause69.(1) The Tribunal may authorise an assessor, or another appropriate 2
person, (the "authorised person") to take evidence for it. 3
(2) Subject to any limitations specified by the Tribunal, in taking the 4
evidence the authorised person has all of the Tribunal's powers under 5
section 68 (Powers of Tribunal to take evidence). 6
(3) If the authorised person takes the evidence on oath or affirmation, the 7
authorised person must make a written record of the evidence and send it to 8
the Tribunal. 9
(4) This Act applies to the authorised person in taking the evidence as if a 10
reference to the Tribunal included a reference to the authorised person. 11
(NTA, s.150) 12
Interpreters
The Tribunal may allow evidence to be given, or submissions to 13
Clause70.
be made, with the help of an interpreter. 14
and copying of documents etc. (NTA, s.151) 15
Retention
The Tribunal may keep for a reasonable time, and may make 16
Clause71.(1)
copies of or take extracts from, documents produced to the Tribunal in an 17
inquiry or hearing. 18
(2) The Tribunal may keep for a reasonable time other things produced to 19
the Tribunal in an inquiry or hearing. 20
Division 4--Determinations and reports 21
of Tribunal--native title and compensation 22
Determination
applications (NTA, s.152) 23
After holding an inquiry about an application made under 24
Clause72.(1)
section 29 (Native title and compensation applications), the Tribunal must 25
make a determination about the matters covered by the inquiry. 26
(2) The Tribunal must state in the determination findings of fact on 27
which the determination is based. 28
41
Native Title (Queensland)
that compensation is payable (NTA, s.153) 1
Determination
If the Tribunal makes a determination that compensation is 2
Clause73.
payable, the determination must specify-- 3
(a) if the compensation must be paid to a body corporate in 4
accordance with section 54 (Compensation to be held by body 5
corporate etc.) of the Commonwealth Native Title Act--the body 6
corporate's name; or 7
(b) in any other case-- 8
(i) the person or persons entitled to the compensation or the 9
method for deciding the person or persons entitled to the 10
compensation; and 11
(ii) any method for deciding the amount or kind of 12
compensation to be given to each person; and 13
(iii) the method for deciding a dispute about the entitlement of a 14
person to an amount of the compensation. 15
to negotiate applications (NTA, s.154) 16
Determination--right
Clause74.(1) After holding an inquiry about a right to negotiate application, 17
the Tribunal must make a determination about the matters covered by the 18
inquiry. 19
(2) The Tribunal must state in the determination findings of fact on 20
which the determination is based. 21
(3) This section is subject to-- 22
(a) section 35 (No determination if agreement) of the 23
Commonwealth Native Title Act; and 24
(b) an equivalent provision under any alternative provisions made by 25
a State law. 26
after special inquiries (NTA, s.155) 27
Reports
After holding an inquiry about a special matter, the Tribunal 28
Clause75.(1)
must make a report about the matters covered by the inquiry. 29
42
Native Title (Queensland)
(2) The Tribunal must state in the report findings of fact on which the 1
report is based. 2
and reports to be in writing (NTA, s.156) 3
Determinations
Determinations and reports by the Tribunal must be in writing 4
Clause76.
and be given to each of the parties. 5
or determination conclusive (see NTA, s.157) 6
Decision
Subject to a decision made on an appeal from a decision or 7
Clause77.
determination of the Tribunal, the decision or determination is final and 8
conclusive of the matters decided. 9
Division 5--Appeals 10
to Land Appeal Court from decisions and determinations of 11
Appeals
Tribunal (see NTA, s.161) 12
A party to an inquiry about an application made under 13
Clause78.(1)
section 29 (Native title and compensation applications) may appeal to the 14
Land Appeal Court, on a question of law or fact, from a decision or 15
determination of the Tribunal in the inquiry. 16
(2) A party to an inquiry about a right to negotiate application before the 17
Tribunal may appeal to the Land Appeal Court, on a question of law, from 18
any decision or determination of the Tribunal in the inquiry. 19
(3) If a person gives an application to the Registrar under section 30 20
(Form and contents of applications), the person may appeal to the Land 21
Appeal Court, on a question of fact or law, from a decision of a presidential 22
member not to accept the application. 23
(4) If a person applies to the Tribunal to be made a party to an 24
application, and the Tribunal decides that the interests of the person will not 25
be affected by a determination on the application, the person may appeal to 26
the Land Appeal Court, on a question of fact or law, from the Tribunal's 27
decision. 28
(5) An appeal must be started-- 29
43
Native Title (Queensland)
(a) within 28 days after the day notice of the Tribunal's decision or 1
determination is given to the person or within the further time that 2
the Court (whether before or after the end of the period) allows; 3
and 4
(b) in the way that may be prescribed by rules of court. 5
(6) The Court must hear the appeal and may make the order it considers 6
appropriate because of its decision. 7
(7) Without limiting subsection (6), the orders that may be made by the 8
Court on an appeal include-- 9
(a) an order confirming or setting aside the decision or determination 10
of the Tribunal; and 11
(b) an order remitting the matter to be heard and decided again by the 12
Tribunal (either with or without the hearing of further evidence) in 13
accordance with the directions of the Court. 14
and implementation of decision or determination subject to 15
Operation
appeal (NTA, s.162) 16
The starting of an appeal to the Land Appeal Court from a 17
Clause79.(1)
decision or determination of the Tribunal does not affect the operation of the 18
decision or determination or prevent the taking of action to implement the 19
decision or determination. 20
(2) However, the Court may, by order, stay a decision or determination 21
of the Tribunal to secure the effectiveness of the appeal. 22
(3) A stay-- 23
(a) may be granted on conditions the Court considers appropriate; 24
and 25
(b) operates for the period specified by the Court; and 26
(c) may be revoked or amended by the Court. 27
(4) The period of the stay specified by the Court must not extend past the 28
time when the Court decides the appeal. 29
44
Native Title (Queensland)
Appeal Court may prohibit disclosure of evidence etc. (see NTA, 1
Land
s.85) 2
The Land Appeal Court may direct that evidence given before 3
Clause80.(1)
it, or the contents of or information provided by a document or other thing 4
produced to it, in an appeal from the Tribunal must not be disclosed, or 5
must not be disclosed other than in the way, and to the persons, that the 6
Court specifies. 7
(2) The Court may make the direction of its own initiative or on 8
application by a party. 9
6--Offences 10
Division
of witness to attend (NTA, s.163) 11
Failure
A person served, as prescribed by regulation, with a summons 12
Clause81.
under this Act to appear as a witness before the Tribunal must not, without 13
reasonable excuse-- 14
(a) fail to attend as required by the summons; or 15
(b) fail to appear during the proceeding as required by the presiding 16
member. 17
Maximum penalty--20 penalty units. 18
to be sworn or answer questions etc. (see NTA, ss.164 and 19
Refusal
166) 20
A person appearing as a witness before the Tribunal must 21
Clause82.(1)
not-- 22
(a) fail to be sworn or to make an affirmation; or 23
(b) without reasonable excuse, fail to answer a question the person is 24
required to answer by the presiding member; or 25
(c) without reasonable excuse, fail to produce a document or other 26
thing the person is required to produce by a summons under this 27
Act served on the person as prescribed by regulation. 28
Maximum penalty--20 penalty units. 29
45
Native Title (Queensland)
(2) It is a reasonable excuse for a person to fail to answer a question if 1
answering the question may tend to incriminate the person. 2
(3) It is a reasonable excuse for a person to fail to produce a document if 3
producing the document may tend to incriminate the person. 4
of false or misleading evidence (see NTA, s.165) 5
Giving
A person appearing before the Tribunal to give evidence must 6
Clause83.(1)
not give evidence the person knows is false or misleading in a material 7
particular. 8
Maximum penalty--40 penalty units. 9
(2) A complaint against a person for an offence against subsection (1) is 10
sufficient if it states the evidence given was false or misleading to the 11
person's knowledge. 12
false or misleading document etc. (see NTA, s.167) 13
Producing
A person must not produce to the Tribunal a document or 14
Clause84.(1)
other thing containing or providing information the person knows is false, 15
misleading or incomplete in a material particular. 16
Maximum penalty--40 penalty units. 17
(2) Subsection (1) does not apply to a person who, when producing the 18
document or other thing-- 19
(a) informs the Tribunal of how it is false, misleading or incomplete; 20
and 21
(b) gives the correct information in evidence to the Tribunal if the 22
person has, or can reasonably obtain, the correct information. 23
(3) A complaint against a person for an offence against subsection (1) is 24
sufficient if it states the document or other thing was false, misleading or 25
incomplete to the person's knowledge. 26
of direction prohibiting disclosure of evidence (NTA, 27
Contravention
s.168) 28
Clause85.(1) This section applies to a direction under either of the following 29
46
Native Title (Queensland)
sections-- 1
· section 67 (Tribunal may prohibit disclosure of evidence etc.) 2
· section 80 (Land Appeal Court may prohibit disclosure of 3
evidence etc.). 4
(2) A person must not disclose anything in contravention of a direction to 5
which this section applies. 6
Maximum penalty--40 penalty units. 7
of Tribunal (NTA, s.169) 8
Contempt
A person must not-- 9
Clause86.
(a) obstruct the Tribunal or a member in the performance of the 10
Tribunal's functions; or 11
(b) disrupt the taking of evidence by the Tribunal; or 12
(c) do anything else that would be a contempt of court if the Tribunal 13
were a court. 14
Maximum penalty--40 penalty units. 15
Division 7--Miscellaneous 16
of documents to the Land Appeal Court (NTA, s.170) 17
Sending
If an appeal to the Land Appeal Court is made under section 78 18
Clause87.
(Appeals to Land Appeal Court from decisions and determinations of 19
Tribunal), or a question of law is referred to the Land Appeal Court under 20
section 58 (Reference of questions of law to Land Appeal Court)-- 21
(a) the Tribunal must send to the Court all documents and other 22
things that were before the Tribunal for the relevant inquiry; and 23
(b) at the end of the proceeding before the Court, the Court must 24
return the documents and other things to the Tribunal. 25
47
Native Title (Queensland)
of documents etc. at end of proceeding (NTA, s.171) 1
Return
Clause88.(1) If a proceeding before the Tribunal has ended and-- 2
(a) the time within which an appeal from the decision or 3
determination of the Tribunal in the proceeding may be made has 4
ended without an appeal being made; or 5
(b) if that time has been extended--the period of the extension has 6
ended without an appeal being made; 7
the Registrar may arrange for a document or anything else given to the 8
Tribunal for the proceeding to be returned to the person who gave it to the 9
Tribunal. 10
(2) If the Land Appeal Court returns a document or other thing to the 11
Tribunal at the end of an appeal, the Registrar may arrange for the document 12
to be returned to the person who gave it to the Tribunal. 13
of members etc. (see NTA, s.172) 14
Protection
A member has, in the performance of duties as a member, the 15
Clause89.(1)
same protection and immunity as a Judge of the Supreme Court. 16
(2) A person representing a party before the Tribunal has the same 17
protection and immunity as a barrister has in appearing for a party in 18
proceeding in the Supreme Court. 19
(3) A person summoned to attend or appearing before the Tribunal as a 20
witness has the same protection as a witness in a proceeding in the Supreme 21
Court. 22
information not to be disclosed (see NTA, s.173) 23
Confidential
This section applies to a person who is, or has been, a 24
Clause90.(1)
member, assessor or officer of the Tribunal or the Land Appeal Court, or 25
the Registrar. 26
(2) A person to whom this section applies is not competent, and must 27
not be required, to give evidence to a court about a matter if-- 28
(a) giving the evidence would be contrary to a direction (a 29
"non-disclosure direction")-- 30
48
Native Title (Queensland)
(i) of the Tribunal under section 67 (Tribunal may prohibit 1
disclosure of evidence etc.); or 2
(ii) of the Land Appeal Court under section 80 (Land Appeal 3
Court may prohibit disclosure of evidence etc.); or 4
(b) an application has been made to the Tribunal or Land Appeal 5
Court for a non-disclosure direction about the matter to which the 6
evidence would relate and the application has not been decided. 7
(3) A person to whom this section applies must not be required to 8
produce in a court a document or other thing given to the Tribunal, Court or 9
Registrar if-- 10
(a) producing the document or thing would be contrary to a 11
non-disclosure direction; or 12
(b) an application has been made to the Tribunal or Court for a 13
non-disclosure direction about the document or thing and the 14
application has not been decided. 15
(4) A person who is, or has been, a member of the Tribunal must not be 16
required to give evidence to a court about a proceeding before the Tribunal. 17
(5) In this section-- 18
"court" includes a tribunal, authority or person having power to require the 19
production of documents or the answering of questions; 20
"produce" includes permit access to. 21
for persons giving evidence (NTA, s.174) 22
Fees
A person, other than a party, summoned to appear before the 23
Clause91.(1)
Tribunal to give evidence is entitled to be paid, for attendance, fees and 24
allowances for expenses that may be prescribed by regulation. 25
(2) The fees and allowances must be paid-- 26
(a) if the witness was summoned at a party's request--by the party; 27
or 28
(b) in any other case--by the State. 29
49
Native Title (Queensland)
PART 9--PROVISIONS ABOUT THE TRIBUNAL 1
Division 1--Membership 2
of the Tribunal (see NTA, s.103) 3
Members
The Tribunal consists of the President and the number of Deputy 4
Clause92.
Presidents and other members that are appointed under this Act. 5
and non-presidential members (see NTA, s.103) 6
Presidential
Clause93.(1) The President and Deputy Presidents are presidential members 7
of the Tribunal. 8
(2) The other members are non-presidential members of the Tribunal. 9
of members of Tribunal (see NTA, s.104) 10
Appointment
Clause94.(1) The members are appointed by the Governor in Council. 11
(2) The President must be appointed on a full-time basis. 12
(3) A member (other than the President or a District Court Judge) must 13
be appointed either as a full-time or part-time member. 14
for appointment (see NTA, s.103) 15
Qualifications
A person is eligible for appointment as a presidential member 16
Clause95.(1)
only if the person is-- 17
(a) a District Court Judge; or 18
(b) the chairperson or a deputy chairperson of a Land Tribunal; or 19
(c) a presidential member of the National Native Title Tribunal; or 20
(d) a former Judge; or 21
(e) a lawyer of at least 5 years standing. 22
(2) A person is eligible for appointment as a non-presidential member 23
only if-- 24
50
Native Title (Queensland)
(a) the person is-- 1
(i) a non-presiding member of a Land Tribunal; or 2
(ii) a non-presidential member of the National Native Title 3
Tribunal; or 4
(iii) a member of a recognised State/Territory body; or 5
(b) the person has, in the Governor in Council's opinion, special 6
knowledge about-- 7
(i) Aboriginal or Torres Strait Islander societies; or 8
(ii) land management; or 9
(iii) dispute resolution; or 10
(iv) anything else considered by the Governor in Council to have 11
substantial relevance to the duties of a non-presidential 12
member. 13
as member of Land Tribunal not affected 14
Appointment
Nothing in this or another Act prevents a member (including the 15
Clause96.
President) also holding office as the chairperson or other member of a Land 16
Tribunal. 17
member 18
Acting
Clause97.(1) The Governor in Council may appoint a qualified person to act 19
as the President during-- 20
(a) a vacancy, or all vacancies, in the office; or 21
(b) a period, or all periods, when the President is absent from duty or 22
Australia or cannot perform the office's duties for another reason. 23
(2) The Governor in Council may appoint a qualified person to act as a 24
member of the Tribunal (other than the President). 25
51
Native Title (Queensland)
Division 2--Provisions about District Court Judges 1
of Division 2
Application
This Division applies to a presidential member who is a District 3
Clause98.
Court Judge. 4
of District Court Judge as member not to affect tenure 5
Appointment
etc. 6
The appointment of the Judge as a presidential member, or 7
Clause99.
service by the Judge as a presidential member, does not affect-- 8
(a) the Judge's tenure of office as a District Court Judge; or 9
(b) the Judge's rank, title, status, precedence, salary, annual or other 10
allowances or other rights or privileges as the holder of the 11
Judge's office as a District Court Judge. 12
of office 13
Termination
The member ceases to hold office if the member ceases to 14
Clause100.(1)
hold office as a District Court Judge. 15
(2) The member may resign the office by written resignation given to the 16
Governor. 17
(3) The resignation does not affect the member's appointment as a 18
District Court Judge. 19
of interests 20
Disclosure
Section 107 (Disclosure of interests) applies to the member in 21
Clause101.
the same way as it applies to a member who is not a District Court Judge. 22
52
Native Title (Queensland)
3--Provisions about other members 1
Division
of Division 2
Application
This Division applies to a member who is not a District Court 3
Clause102.
Judge. 4
of appointment (NTA, s.108(1)) 5
Duration
The member is appointed for the term (not longer than 5 years) 6
Clause103.
specified in the instrument of appointment. 7
of appointment (NTA, ss.107 and108(4)) 8
Terms
The member is entitled to be paid the remuneration and 9
Clause104.(1)
allowances decided by the Governor in Council. 10
(2) The member holds office on the terms not provided by this Act that 11
are decided by the Governor in Council. 12
of absence (see NTA, s.110) 13
Leave
The Minister may grant leave of absence to the President on 14
Clause105.(1)
the terms the Minister considers appropriate. 15
(2) The President may grant leave of absence to a full-time member on 16
the terms the President considers appropriate. 17
(NTA, s.111) 18
Resignation
A member may resign by giving a signed notice of resignation 19
Clause106.
to the Governor. 20
of interests (NTA, s.115) 21
Disclosure
If the member has a conflict of interest about an application 22
Clause107.(1)
or inquiry, the member must disclose the matters giving rise to the 23
conflict-- 24
(a) if the member is the President--to the Minister and the parties; or 25
53
Native Title (Queensland)
(b) if the member is not the President--to the President and the 1
parties. 2
(2) The member may take part in the inquiry, or exercise a power for the 3
application or inquiry, only if-- 4
(a) for a member who is the President--the State Minister and the 5
parties agree; or 6
(b) for a member who is not the President--the President and the 7
parties agree. 8
(3) A member has a conflict of interest about an application or inquiry if 9
the member has an interest (financial or otherwise) that could conflict with 10
the proper performance of the member's functions for the application or 11
inquiry. 12
of appointment (see NTA, s.112) 13
Termination
The Governor in Council may terminate the appointment of a 14
Clause108.
member if the member-- 15
(a) becomes a patient within the meaning of the Mental Health 16
Act 1974; or 17
(b) is convicted of an indictable offence; or 18
(c) for a member who is a non-presidential member--commits 19
misconduct of a kind that could justify dismissal from the public 20
service if the member were an officer of the public service; or 21
(d) contravenes section 107 (Disclosure of interests); or 22
(e) for a member who is the President--is absent, without the State 23
Minister's leave and without reasonable excuse, for 24
14 consecutive days or 28 days in a year; or 25
(f) for a member who is a full-time member--is absent, without the 26
President's leave and without reasonable excuse, for 27
14 consecutive days or 28 days in a year. 28
54
Native Title (Queensland)
Division 4--Organisation of Tribunal 1
of business (NTA, s.116) 2
Arrangement
Clause109.(1) The President may give directions about the following-- 3
(a) the arrangement of the Tribunal's business; 4
(b) the presidential member who-- 5
(i) is to consider a particular application under section 33(4) 6
(Action to be taken about applications); or 7
(ii) is to constitute the Tribunal for making a decision under 8
section 38(1) (Tribunal to decide persons whose interests 9
may be affected); 10
(c) the members who are to constitute the Tribunal for a particular 11
inquiry; 12
(d) the places where the Tribunal is to sit; 13
(e) the Tribunal's procedure at a particular place and generally. 14
(2) In giving a direction about the members who are to constitute the 15
Tribunal for a particular inquiry, the President must have regard to the 16
degree of public importance or complexity of the matters to which the 17
inquiry relates. 18
of Tribunal for exercise of powers (NTA, s.117) 19
Constitution
Clause110.(1) The Tribunal for a particular inquiry must be constituted by-- 20
(a) a member; or 21
(b) 3 members of whom only 1 is a presidential member. 22
(2) If the Tribunal is constituted by 3 members, the President must, as 23
far as is reasonably practicable, ensure that the Tribunal includes at least 24
1 member with special knowledge about Aboriginal or Torres Strait 25
Islander societies. 26
(3) This section is subject to section 38 (Tribunal to decide persons 27
whose interests may be affected). 28
55
Native Title (Queensland)
of Tribunal (NTA, s.118) 1
Reconstitution
This section applies if a member (the "unavailable 2
Clause111.(1)
member") who constitutes the Tribunal, or who is 1 of the members who 3
constitutes the Tribunal, for a particular inquiry-- 4
(a) ceases to be a member; or 5
(b) for another reason is not available for the inquiry. 6
(2) If the unavailable member constitutes the Tribunal, the President 7
must direct another member or members to constitute the Tribunal to finish 8
the inquiry. 9
(3) If the unavailable member is 1 of the members who constitute the 10
Tribunal, the President must direct that the Tribunal is constituted to finish 11
the inquiry by-- 12
(a) the remaining member or members; or 13
(b) the remaining member or members and another member or 14
members. 15
(4) For subsections (2) and (3), a member who ceases to be a member 16
and at a later time becomes a member again is taken, from the later time, to 17
be another member. 18
(5) The Tribunal as constituted in accordance with a direction under 19
subsection (2) or (3) must continue and finish the inquiry, and may have 20
regard to the record of the proceeding of the inquiry made by the Tribunal 21
as previously constituted. 22
presiding (NTA, s.119) 23
Member
The President must give a direction about the member who is to 24
Clause112.
be the presiding member for a particular inquiry. 25
of sitting (NTA, s.120) 26
Places
Sittings of the Tribunal are to be held at the places where the 27
Clause113.
Tribunal's registries are established, but the Tribunal may sit anywhere else 28
in or outside Queensland. 29
56
Native Title (Queensland)
Division 5--Registrar and other officers and staff of Tribunal 1
of Registrar (see NTA, s.88) 2
Appointment
The Registrar must be appointed under the Public Service 3
Clause114.(1)
Management and Employment Act 1988. 4
(2) A person is eligible to be appointed as Registrar only if the person is 5
a lawyer of at least 5 years standing. 6
of Registrar--helping the President (NTA, s.89) 7
Powers
The Registrar may do everything necessary or convenient to 8
Clause115.(1)
be done to help the President manage the Tribunal's administrative affairs. 9
(2) In particular, the Registrar may act for the President in managing the 10
Tribunal's administrative affairs. 11
(3) The President may give the Registrar directions about the exercise of 12
the Registrar's powers under this Part. 13
of Registrar--applications (NTA, s.90) 14
Powers
The Registrar has powers under Part 7 (Applications about 15
Clause116.
native title). 16
of Registrar--Native Title Register (NTA, s.91) 17
Powers
The Registrar also has powers under Part 10 (Native title 18
Clause117.
register). 19
by Registrar (NTA, s.92) 20
Delegation
The Registrar may delegate the Registrar's powers under this 21
Clause118.
Act to a Deputy Registrar or member of the Tribunal's staff. 22
of interests by Registrar (NTA, s.99) 23
Disclosure
The Registrar must give written notice to the President of all 24
Clause119.
direct or indirect financial interests the Registrar has or acquires in a 25
57
Native Title (Queensland)
business or a corporation carrying on a business. 1
Registrars and staff of the Tribunal (NTA, s.123) 2
Deputy
Clause120.(1) As well as the Registrar, there are to be the Deputy Registrars 3
and staff of the Tribunal that are necessary. 4
(2) The Deputy Registrars and the staff of the Tribunal are to be persons 5
appointed or employed under the Public Service Management and 6
Employment Act 1988. 7
(3) The Deputy Registrars and the staff of the Tribunal have the duties 8
and powers that are given by this Act or the President. 9
of consultants etc. (NTA, s.125) 10
Engagement
The Registrar may engage persons having suitable 11
Clause121.(1)
qualifications and experience as consultants to, or to perform services for, 12
the Tribunal. 13
(2) Without limiting subsection (1), the services that a consultant may be 14
engaged to perform include conducting research for the Tribunal. 15
(3) An engagement under subsection (1) must be made for the State by a 16
written agreement. 17
Division 6--Assessors 18
(see NTA, s.76) 19
Assessors
There are to be assessors to help the Tribunal in the exercise 20
Clause122.(1)
of its jurisdiction under this Act. 21
(2) In helping the Tribunal, an assessor is subject to the control and 22
direction of the Tribunal. 23
(3) A regulation may provide for assessors to help Wardens Courts in 24
their roles as recognised State/Territory bodies and arbitral bodies under the 25
Commonwealth Native Title Act. 26
58
Native Title (Queensland)
of assessors (see NTA, s.203) 1
Appointment
Clause123.(1) The assessors are appointed by the Governor in Council. 2
(2) An assessor must be appointed either as a full-time or part-time 3
assessor. 4
(3) As far as practicable, persons appointed as assessors are to be 5
Aborigines or Torres Strait Islanders. 6
for appointment (see NTA, s.203) 7
Qualifications
A person may be appointed as an assessor only if the person 8
Clause124.
has, in the Governor in Council's opinion, special knowledge about-- 9
(a) Aboriginal or Torres Strait Islander societies; or 10
(b) land management; or 11
(c) dispute resolution; or 12
(d) anything else considered by the Governor in Council to have 13
substantial relevance to the duties of an assessor. 14
of appointment (see NTA, s.203) 15
Duration
An assessor is appointed for the term (not longer than 5 years) 16
Clause125.
specified in the instrument of appointment. 17
of appointment (see NTA, s.203) 18
Terms
An assessor is entitled to be paid the remuneration and 19
Clause126.(1)
allowances decided by the Governor in Council. 20
(2) An assessor holds office on the terms not provided by this Act that 21
are decided by the Governor in Council. 22
of absence (see NTA, s.203) 23
Leave
Clause127. The Registrar may grant leave of absence to a full-time assessor 24
on the terms the Registrar considers appropriate. 25
59
Native Title (Queensland)
(NTA, s.203) 1
Resignation
An assessor may resign by giving a signed notice of resignation 2
Clause128.
to the Governor. 3
of interests (NTA, s.203) 4
Disclosure
Clause129.(1) If an assessor has a conflict of interest about an application or 5
inquiry, the assessor must disclose the matters giving rise to the conflict to 6
the President and the parties. 7
(2) The assessor may take part in the inquiry, or help in the exercise of 8
powers for the application or inquiry, only if the President and the parties 9
agree. 10
(3) An assessor has a conflict of interest about an application or inquiry if 11
the member has an interest (financial or otherwise) that could conflict with 12
the proper performance of the assessor's duties for the application or 13
inquiry. 14
of appointment (see NTA, s.203) 15
Termination
The Governor in Council may terminate the appointment of an 16
Clause130.
assessor if the assessor-- 17
(a) becomes a patient within the meaning of the Mental Health 18
Act 1974; or 19
(b) is convicted of an indictable offence; or 20
(c) commits misconduct of a kind that could justify dismissal from 21
the public service if the assessor were an officer of the public 22
service; or 23
(d) contravenes section 129 (Disclosure of interests); or 24
(e) for an assessor who is a full-time assessor--is absent without the 25
Registrar's leave and without reasonable excuse, for 26
14 consecutive days or 28 days in a year. 27
7--Miscellaneous administrative matters 28
Division
60
Native Title (Queensland)
of administrative affairs of Tribunal (NTA, ss.121(1) 1
Management
and 122) 2
The President is responsible for managing the Tribunal's 3
Clause131.(1)
administrative affairs. 4
(2) The Native Title Registrar helps the President to manage the 5
Tribunal's administrative affairs. 6
by President to members (NTA, s.106) 7
Delegation
The President may delegate the President's powers under this 8
Clause132.
Act to 1 or more of the members. 9
report (see NTA, s.126) 10
Annual
Within 4 months after the end of each financial year, the 11
Clause133.(1)
President must give the Minister a report on the Tribunal's operations 12
during the year. 13
(2) The Minister must table a copy of the report in the Legislative 14
Assembly within 14 days after receiving the report. 15
arising out of administration of Tribunal (NTA, s.129) 16
Proceedings
A judicial or other proceeding about a matter arising out of the 17
Clause134.
management of the Tribunal's administrative affairs (including a proceeding 18
about anything done by the President or Registrar in the management of the 19
Tribunal's administrative affairs) may be taken by or against the State. 20
ART 10--NATIVE TITLE REGISTER 21
P
of "claim" (NTA, s.176) 22
Meaning
In this Part-- 23
Clause135.
"claim" means an assertion in an application given to the Registrar, or the 24
National Registrar, that a person or persons hold native title for a 25
61
Native Title (Queensland)
specified area of land or waters within the jurisdictional limits of the 1
State. 2
Title Register (NTA, ss.177 and 184) 3
Native
Clause136.(1) The Registrar must establish and keep the Queensland Native 4
Title Register. 5
(2) The register may be kept by computer. 6
(3) The register may consist of 2 or more registers, each containing the 7
part of the information that must be entered into the register as the Registrar 8
decides. 9
of the register (NTA, ss.178 and 185) 10
Contents
The Native Title Register must contain the following 11
Clause137.(1)
information for each claim-- 12
(a) whether the claim was made to the Registrar, the National 13
Registrar or another entity; 14
(b) the entity to whom the claim was made; 15
(c) the date when the claim was made; 16
(d) the name and address for service of the person who is taken to be 17
the claimant; 18
(e) the area of land or waters covered by the claim; 19
(f) a description of the persons who it is claimed hold the native title. 20
(2) The Registrar may include in the register the other details about the 21
claim the Registrar considers appropriate. 22
(3) The register must contain the information mentioned in 23
subsection (4) about the following determinations and decisions-- 24
(a) approved native title determinations about areas of land or waters 25
within the jurisdictional limits of the State; and 26
(b) other determinations and decisions by courts and tribunals about 27
native title to areas of land or waters within the jurisdictional 28
limits of the State. 29
62
Native Title (Queensland)
(4) The register must contain the following information about each 1
determination or decision-- 2
(a) the name of the entity that made the determination or decision; 3
(b) the date when the determination or decision was made; 4
(c) the area of land or waters covered by the determination or 5
decision; 6
(d) the matters decided, including the name and address of the body 7
corporate that is to hold the native title rights and interests under 8
section 28 (Native title to be held by body corporate) of this Act 9
or section 53 (Native title to be held by body corporate) of the 10
Commonwealth Native Title Act. 11
(5) The Registrar may include in the register the other details about the 12
determination or decision the Registrar considers appropriate. 13
of the register (NTA, ss.179 and 186) 14
Inspection
The Registrar must ensure that the Native Title Register is 15
Clause138.(1)
available for inspection by members of the public during normal business 16
hours. 17
(2) A person may inspect the register if the person pays the fee 18
prescribed by regulation. 19
(3) If the register is kept wholly or partly by computer, subsection (1) is 20
taken to be complied with, so far as the register is kept by computer, by 21
giving members of the public access to a computer terminal they can use to 22
inspect the register, either by viewing a screen display or by obtaining a 23
computer print-out. 24
of the register may be kept confidential (NTA, ss.180 and 187) 25
Parts
Section 138 (Inspection of the register) does not apply to a 26
Clause139.(1)
part of the Native Title Register if the Registrar is satisfied that it would not 27
be in the public interest for information in the part of the register to be 28
available to the public. 29
(2) Section 138 does not apply to the part of the register that consists of 30
names or addresses of persons who it is claimed hold native title, other than 31
63
Native Title (Queensland)
the name and address for service of a person who is taken to be a claimant. 1
(3) In deciding whether it would or would not be in the public interest for 2
information in a part of the register to be available to the public, the 3
Registrar must have proper regard to relevant cultural and customary 4
concerns of Aboriginal people and Torres Strait Islanders. 5
the register (NTA, ss.182 and 189) 6
Keeping
As soon as practicable after becoming aware of the details of a 7
Clause140.
claim, or a determination or decision about native title to land or waters 8
within the jurisdictional limits of the State, the Registrar must include the 9
details in the Native Title Register. 10
may be located in land registry 11
Register
The Native Title Register may be located in the land registry 12
Clause141.
established under the Real Property Act 1861. 13
officer to notify Registrar 14
Proper
The proper officer of a court must, as soon as practicable, 15
Clause142.(1)
notify the Registrar of-- 16
(a) the details of a claim contained in an application given to the 17
court; and 18
(b) the details of a determination or decision made by the court about 19
a claim. 20
(2) In subsection (1)-- 21
"proper officer" means-- 22
(a) for the Supreme Court or a District Court--the registrar; or 23
(b) for a Magistrates Court--the clerk of the court. 24
to inform National Registrar of applications etc. (NTA, 25
Registrar
s.236(2)(i)) 26
This section applies to a body that is a recognised 27
Clause143.(1)
64
Native Title (Queensland)
State/Territory body for Queensland. 1
(2) The Registrar must inform the National Registrar of-- 2
(a) all applications for a decision, order or judgment of the body 3
involving an approved determination of native title; and 4
(b) the making of an approved determination of native title by the 5
body. 6
PART 11--MISCELLANEOUS 7
8
Compensation
If this Act operates to extinguish native title, either wholly or 9
Clause144.
partly, and payment of compensation to the native title holders is not 10
otherwise provided by law, the native title holders are entitled to the 11
compensation on just terms because of the operation of this Act that is 12
agreed between the native title holders and the State or, failing agreement, 13
that is decided by the Native Title Tribunal. 14
making power 15
Regulation
Clause145. The Governor in Council may make regulations under this Act. 16
Native Title Act 17
Attachment--Commonwealth
Attached to this Act is a copy of the Commonwealth Native 18
Clause146.(1)
Title Act. 19
(2) The attachment does not form part of this Act. 20
(3) To remove doubt, it is declared that the copy of the Commonwealth 21
Native Title Act in the attachment may be revised so that it is an accurate 22
copy of the Commonwealth Native Title Act as enacted and as amended 23
from time to time. 24
65
Native Title (Queensland)
ART 12--INTERIM PROVISIONS 1
P
Division 1--Object of Part 2
3
Object
The object of this Part is to make, and permit the making of, 4
Clause147.
various interim provisions, pending a full review of Queensland law, to 5
ensure-- 6
(a) that Queensland law is consistent with standards set by the 7
Commonwealth Native Title Act for future dealings affecting 8
native title; and 9
(b) that claims to native title can be dealt with by State-based 10
mechanisms that are complementary to, and consistent with, the 11
mechanisms established by the Commonwealth Native Title Act. 12
2--Compulsory acquisition 13
Division
title rights and interests may be acquired (NTA, s.22(3), (5) 14
Native
and (6)) 15
The whole or a part of native title rights and interests may be 16
Clause148.(1)
acquired under a State Compulsory Acquisition Act in the same way that 17
other interests in land may be acquired. 18
(2) However, the State Compulsory Acquisition Act applies to native title 19
with changes that may be prescribed by regulation and subject to the 20
following provisions-- 21
· section 149 (Effect of acquisition on native title) 22
· section 150 (Acquisition to be on just terms) 23
· section 151 (Requests for non-monetary compensation). 24
(3) Without limiting subsection (2), the State Compulsory Acquisition 25
Act applies to native title with any changes prescribed by regulation that, in 26
the Governor in Council's opinion, are necessary or convenient to ensure 27
that-- 28
66
Native Title (Queensland)
(a) if an acquisition is made at someone's request, the person is liable 1
to pay the compensation; and 2
(b) native title holders have the same procedural rights as the holders 3
of ordinary title; and 4
(c) the State Compulsory Acquisition Act may be excluded from the 5
coverage of section 25(2) (which deals with acts excluded from 6
the right to negotiate) of the Commonwealth Native Title Act in 7
appropriate cases; and 8
(d) the expedited procedure in section 31 of the Commonwealth 9
Native Title Act may apply in appropriate cases; and 10
(e) the State Compulsory Acquisition Act may comply with 11
section 41(2) (which deals with alternative right to negotiate 12
provisions) of the Commonwealth Native Title Act; and 13
(f) the State Compulsory Acquisition Act is otherwise consistent 14
with and gives effect to the objects and provisions of the 15
Commonwealth Native Title Act. 16
of acquisition on native title (NTA, s.22(3)(a)) 17
Effect
If acquisition of native title under a State Compulsory 18
Clause149.
Acquisition Act is wholly or partly inconsistent with the continued 19
existence, enjoyment or exercise of the native title rights and interests, the 20
acquisition extinguishes native title to the extent of the inconsistency. 21
to be on just terms (NTA, ss.238 (definition "Compulsory 22
Acquisition
Acquisition Act") and 22(3)(b)) 23
Every State Compulsory Acquisition Act is taken to provide 24
Clause150.(1)
for payment of compensation, in accordance with the Commonwealth 25
Native Title Act, to native title holders for the acquisition under the Act of 26
the whole or a part of their native title rights and interests. 27
(2) Part 2, Division 5 of the Commonwealth Native Title Act applies to 28
the determination of the compensation payable for the acquisition. 29
67
Native Title (Queensland)
for non-monetary compensation (NTA, s.238 (definition 1
Requests
"Compulsory Acquisition Act")) 2
Every State Compulsory Acquisition Act is taken to contain 3
Clause151.(1)
provisions to the same effect as section 72 of the Commonwealth Native 4
Title Act for the determination of the compensation to which native title 5
holders are entitled for the acquisition under the Compulsory Acquisition 6
Act of the whole or a part of their native title rights and interests. 7
(2) Similar provision is made in section 49(6) of the Commonwealth 8
Native Title Act and section 49 of this Act. 9
Division 3--Mining 10
title holders are owners for State Mining Acts 11
Native
For the purposes of every State Mining Act, the owners of 12
Clause152.(1)
land include the holders of native title for the land. 13
(2) Without limiting subsection (1), the native title holders are entitled to 14
every right and privilege of other owners of land. 15
(3) This section does not limit by implication the rights and interests of 16
native title holders. 17
Mining Acts apply with prescribed changes 18
State
Clause153.(1) To ensure that a State Mining Act is consistent with and gives 19
effect to the objects and provisions of the Commonwealth Native Title Act, 20
the State Mining Act applies to native title with the changes prescribed by 21
regulation. 22
(2) Without limiting subsection (1), the State Mining Act applies to 23
native title with any changes prescribed by regulation that, in the Governor 24
in Council's opinion, are necessary or convenient to ensure-- 25
(a) that Wardens Courts become recognised State/Territory bodies 26
and arbitral bodies; and 27
(b) that the State Mining Act may be excluded from the coverage of 28
section 25(2) (which deals with acts excluded from the right to 29
negotiate) of the Commonwealth Native Title Act in appropriate 30
68
Native Title (Queensland)
cases; and 1
(c) that the expedited procedure in section 31 of the Commonwealth 2
Native Title Act may apply in appropriate cases; and 3
(d) that the State Mining Act may comply with section 41(2) (which 4
deals with alternative right to negotiate provisions) of the 5
Commonwealth Native Title Act. 6
4--Other interim provisions 7
Division
title holders are owners 8
Native
For the purposes of an Act prescribed by regulation, the 9
Clause154.(1)
owners of land include the holders of native title for the land. 10
(2) Without limiting subsection (1), the native title holders are entitled to 11
every right and privilege of other owners of the land. 12
(3) This section does not limit by implication the rights or interests of 13
native title holders. 14
regulation making power 15
Interim
A regulation may make provision with respect to a matter 16
Clause155.(1)
necessary or convenient to be prescribed for carrying out or giving effect to 17
the objects and provisions of this Act or the Commonwealth Native Title 18
Act (with or without changes). 19
(2) Without limiting subsection (1), the regulation may declare that it has 20
effect despite any Act, or a particular Act, passed before the commencement 21
of this Act. 22
(3) A regulation mentioned in subsection (2) expires 1 year after it is 23
made or on the expiry of this Chapter, whichever is the earlier, unless it is 24
earlier repealed. 25
of Part 26
Expiry
Clause156. This Part expires 2 years after it commences. 27
69
Native Title (Queensland)
ART 13--AMENDMENT OF ACTS 1
P
1--Amendment of Aboriginal Land Act 1991 2
Division
Act 3
Amended
The Aboriginal Land Act 1991 is amended as set out in this 4
Clause157.
Division. 5
of s.1.03 (Definitions) 6
Amendment
Section 1.03-- 7
Clause158.
insert-- 8
` "native title interests" has the meaning given by s.1.04A (Meaning of 9
"native title interests");'. 10
of new s.1.04A 11
Insertion
Clause159. After section 1.04-- 12
insert-- 13
of "native title interests" 14
`Meaning
`1.04A.(1) In this Act, "native title interests" means the communal, 15
group or individual rights and interests of Aboriginal people in land or 16
waters if-- 17
(a) the rights and interests are possessed under Aboriginal tradition; 18
and 19
(b) the Aboriginal people, by Aboriginal tradition, have a connection 20
with the land or waters; and 21
(c) the rights and interests are recognised by the common law of 22
Australia. 23
`(2) Without limiting subsection (1), rights and interests in that 24
subsection include hunting, gathering or fishing rights and interests.'. 25
70
Native Title (Queensland)
of s.2.13 (Lands that are available Crown land--general) 1
Amendment
Clause160. Section 2.13(2), after `include'-- 2
insert `native title interests or'. 3
of s.3.06 (Existing interests) 4
Amendment
Section 3.06(1)-- 5
Clause161.(1)
omit `(other than an interest in favour of the Crown)'. 6
(2) Section 3.06-- 7
insert-- 8
`(4) In this section-- 9
"interest" includes native title interests, but does not include an interest in 10
favour of the State or Commonwealth.'. 11
of s.5.08 (Existing interests) 12
Amendment
Section 5.08-- 13
Clause162.(1)
omit `(other than an interest in favour of the Crown)'. 14
(2) Section 5.08-- 15
insert-- 16
`(2) In this section-- 17
"interest" includes native title interests, but does not include an interest in 18
favour of the State or Commonwealth.'. 19
of new s.8.26A 20
Insertion
Clause163. After section 8.26-- 21
insert-- 22
must refer certain matters to Native Title Tribunal 23
`Tribunal
`8.26A.(1) This section applies if-- 24
(a) native title interests are claimed to exist for an area claimed under 25
this Act; or 26
71
Native Title (Queensland)
(b) the question of native title interests arises about an area claimed 1
under this Act. 2
`(2) The Tribunal must refer the claim to the Native Title Tribunal for 3
hearing. 4
`(3) The Native Title Tribunal is the Land Tribunal for the purposes of 5
the claim and a reference in this Act to the Land Tribunal is a reference to 6
the Native Title Tribunal.'. 7
of new s.8.30A 8
Insertion
Clause164. After section 8.30-- 9
insert-- 10
and other findings in other proceedings 11
`Evidence
`8.30A. In a proceeding, the Land Tribunal may-- 12
(a) receive into evidence the transcript of evidence in another 13
proceeding before-- 14
(i) a court; or 15
(ii) the National Native Title Tribunal; or 16
(iii) the Native Title Tribunal; or 17
(iv) a recognised State/Territory body within the meaning of the 18
Native Title Act 1993 (Cwlth); or 19
(v) another entity; 20
and draw conclusions of fact from the transcript; and 21
(b) receive into evidence a document or other thing introduced into 22
evidence in another proceeding before a court or other entity and 23
draw conclusions from the document or thing; and 24
(c) adopt findings, decisions, determinations or judgments of a court 25
or other entity.'. 26
72
Native Title (Queensland)
2--Amendment of Torres Strait Islander Land Act 1991 1
Division
Act 2
Amended
The Torres Strait Islander Land Act 1991 is amended as set out 3
Clause165.
in this Division. 4
of s.1.04 (Definitions) 5
Amendment
Section 1.04-- 6
Clause166.
insert-- 7
` "native title interests" has the meaning given by section 1.05A (Meaning 8
of "native title interests");'. 9
of new s.1.05A 10
Insertion
Clause167. After section 1.05-- 11
insert-- 12
of "native title interests" 13
`Meaning
`1.05A.(1) In this Act, "native title interests" means the communal, 14
group or individual rights and interests of Torres Strait Islanders in land or 15
waters if-- 16
(a) the rights and interests are possessed under Island custom; and 17
(b) the Torres Strait Islanders, by Island custom, have a connection 18
with the land or waters; and 19
(c) the rights and interests are recognised by the common law of 20
Australia. 21
`(2) Without limiting subsection (1), rights and interests in that 22
subsection include hunting, gathering or fishing rights and interests.'. 23
of s.2.10 (Lands that are available Crown land--general) 24
Amendment
Clause168. Section 2.10(2), after `include'-- 25
insert `native title interests or'. 26
73
Native Title (Queensland)
of s.3.06 (Existing interests) 1
Amendment
Section 3.06(1)-- 2
Clause169.(1)
omit `(other than an interest in favour of the Crown)'. 3
(2) Section 3.06-- 4
insert-- 5
`(4) In this section-- 6
"interest" includes native title interests, but does not include an interest in 7
favour of the State or Commonwealth.'. 8
of s.5.08 (Existing interests) 9
Amendment
Section 5.08-- 10
Clause170.(1)
omit `(other than an interest in favour of the Crown)'. 11
(2) Section 5.08-- 12
insert-- 13
`(2) In this section-- 14
"interest" includes native title interests, but does not include an interest in 15
favour of the State or Commonwealth.'. 16
of new s.8.26A 17
Insertion
Clause171. After section 8.26-- 18
insert-- 19
must refer certain matters to Native Title Tribunal 20
`Tribunal
`8.26A.(1) This section applies if-- 21
(a) native title interests are claimed to exist for an area claimed under 22
this Act; or 23
(b) the question of native title interests arises about an area claimed 24
under this Act. 25
`(2) The Tribunal must refer the claim to the Native Title Tribunal for 26
hearing. 27
74
Native Title (Queensland)
`(3) The Native Title Tribunal is the Land Tribunal for the purposes of 1
the claim and a reference in this Act to the Land Tribunal is a reference to 2
the Native Title Tribunal.'. 3
of new s.8.30A-- 4
Insertion
Clause172. After section 8.30-- 5
insert-- 6
and other findings in other proceedings 7
`Evidence
`8.30A. In a proceeding, the Land Tribunal may-- 8
(a) receive into evidence the transcript of evidence in another 9
proceeding before-- 10
(i) a court; or 11
(ii) the National Native Title Tribunal; or 12
(iii) the Native Title Tribunal; or 13
(iv) a recognised State/Territory body within the meaning of the 14
Native Title Act 1993 (Cwlth); or 15
(v) another entity; 16
and draw conclusions of fact from the transcript; and 17
(b) receive into evidence a document or other thing introduced into 18
evidence in another proceeding before a court or other entity and 19
draw conclusions from the document or thing; and 20
(c) adopt findings, decisions, determinations or judgments of a court 21
or other entity.'. 22
3--Amendment of Land Act 1962 23
Division
Act 24
Amended
The Land Act 1962 is amended as set out in this Division. 25
Clause173.
75
Native Title (Queensland)
of s.30 1
Amendment
Section 30(1F)-- 2
Clause174.
omit, insert-- 3
`(1F) The Governor in Council-- 4
(a) must appoint the President and Deputy Presidents of the Native 5
Title Tribunal; and 6
(b) may appoint other members of the Native Title Tribunal; 7
as members of the Land Court. 8
`(1G) A member of the Native Title Tribunal (other than a District Court 9
Judge) appointed to the Land Court must be appointed-- 10
(a) if the member is the President or a full-time member--on a 11
full-time basis; and 12
(b) if the member is a part-time member--on a part-time basis. 13
`(1H) A member of the Native Title Tribunal (other than a District Court 14
Judge) who is appointed to the Land Court ceases to be a member of the 15
Land Court if the person ceases to be a member of the Native Title Tribunal. 16
`(1I) Subsections (1E) and (1H) do not prevent the reappointment of the 17
person mentioned in the subsection as a member of the Land Court.'. 18
of s.33A (Non-application of certain provisions of Act to 19
Replacement
members of Land Tribunal) 20
Section 33A-- 21
Clause175.
omit, insert-- 22
of certain provisions of Act to members of Native 23
`Non-application
Title and Land Tribunals 24
`33A. Sections 31 to 34 do not apply to a member of the Court who is a 25
member of the Native Title Tribunal or a Land Tribunal.'. 26
of s.44 27
Amendment
Section 44(1)-- 28
Clause176.
76
Native Title (Queensland)
insert-- 1
`(1E) For hearing appeals from the Native Title Tribunal, the Land 2
Appeal Court must consist of a Judge of the Supreme Court and 3
2 members of the Land Court, including (if practicable) at least 1 member 4
of the Tribunal, other than the member who constituted the Tribunal that 5
made the decision appealed against. 6
`(1F) For deciding a question of law referred to it by the Native Title 7
Tribunal, the Land Appeal Court must consist of a Judge of the Supreme 8
Court and 2 members of the Land Court, including (if practicable) at least 9
1 presidential member of the Tribunal, and may include the member who 10
constituted the Tribunal that referred the question of law. 11
`(1G) The President of the Native Title Tribunal must recommend to the 12
President of the Land Court the member or members of the Tribunal who 13
should, in his or her opinion, sit as a member or members of the Land 14
Appeal Court in an appeal or reference to it under subsection (1E) or (1F). 15
`(1H) The President of the Native Title Tribunal may recommend that 16
the President should sit in the appeal or reference.'. 17
18
© State of Queensland 1993
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