(a) under the tenure on which the land
is held, the owner or occupier of the land is entitled to the use and
enjoyment of the surface of the land; or
(b) a person is otherwise entitled
to the use and enjoyment of the surface of the land.
(2) Despite the
existence of the Torres Strait Islander cultural heritage, the owner or
occupier or other person is entitled to the use and enjoyment of the land to
the extent that the person does not unlawfully harm the cultural heritage.