Western Australian Bills Western Australian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Native Title (State Provisions) Bill 1998
CONTENTS
Part 1 -- Preliminary
1.1. Short title 2
1.2. Commencement 2
1.3. Act binds the Crown 3
1.4. Interpretation 3
Part 2 -- Vesting of NTA functions in agencies
of the State
2.1. Authorization of State bodies and office-holders for
purposes of section 199F of the NTA 6
2.2. Commission can be a recognised body under
section 207A(1) of the NTA 6
2.3. Nominations by State Minister for purposes of
section 207B(1) of the NTA 6
2.4. Authorization of State entities and office-holders for
purposes of section 207B of the NTA 7
2.5. Transitional provisions 8
page i
29 -- 2C
Native Title (State Provisions) Bill 1998
Contents
Part 3 -- Consultation procedures for
alternative provision areas
Division 1 -- Preliminary
3.1. Definitions 9
3.2. Request for determination under section 43A(1)(b)
of the NTA 10
3.3. Transitional provisions 10
3.4. Purpose of this Part 10
Division 2 -- Relevant future acts and their validity
3.5. Acts to which this Part applies 11
3.6. Circumstances in which act is not valid 11
3.7. Part 4 may be applied to a Part 3 act 13
3.8. Other statutory requirements not affected 13
Division 3 -- Notices and objections
3.9. Proponent where act relates to mining 13
3.10. Identification of proponents in other cases 14
3.11. Closing date for objections 14
3.12. Notification of acts 15
3.13. Further provision as to notices 15
3.14. Who gives notice 16
3.15. Prescribed provisions about notice 16
3.16. Right to object to doing of act 16
3.17. Requirements for objections 17
3.18. Time limit 17
3.19. Government party to notify the Commission of
objections 18
3.20. Withdrawal of request etc. by proponent 18
3.21. Withdrawal of proposal by Government party 18
Division 4 -- Consultation and agreements
3.22. Meaning of "consultation parties" 19
3.23. Delegation 19
3.24. Consultation 20
page ii
Native Title (State Provisions) Bill 1998
Contents
3.25. Involvement of Commission, including mediation 20
3.26. Withdrawal of objection 21
3.27. Agreement made by parties 21
Division 5 -- Recommendations of the Commission
3.28. Commission may notify intention to hear 21
3.29. Consultations may continue 22
3.30. Objections may be dismissed 23
3.31. Time for making recommendation 23
3.32. No recommendation if agreement etc. 23
3.33. Making of recommendation 24
3.34. Criteria for making recommendations 24
3.35. Issues on which parties agree 25
3.36. Copy of recommendation to be given 25
3.37. Effect of recommendation 26
3.38. Effect of recommendation that specifies conditions 26
Division 6 -- Overruling of recommendations
3.39. Responsible Minister may overrule a
recommendation 26
3.40. Determinations that responsible Minister may make 27
3.41. Consultation before making of determination 28
3.42. Ground on which determination may be made 28
3.43. Conditions in determination 28
3.44. Responsible Minister may declare intention not to
overrule 29
Division 7 -- Applications
3.45. Definition 29
3.46. Form and contents of application 30
3.47. Material and fees to accompany applications 30
3.48. Application fee may be waived 30
Division 8 -- Judicial Review
3.49. Application for review 30
3.50. Time limit for application 31
3.51. Procedure 31
page iii
Native Title (State Provisions) Bill 1998
Contents
3.52. Grounds on which application may be made 31
3.53. Powers of Court 32
3.54. Effect on other remedies 32
Part 4 -- Right to negotiate procedures for
areas not covered by Part 3
Division 1 -- Preliminary
4.1. Request for determination under section 43(1)(b) of
the NTA 33
4.2. Transitional provisions 33
4.3. Purpose of this Part 33
Division 2 -- Relevant future acts and their validity
4.4. Acts to which this Part applies 34
4.5. Circumstances in which act is not valid 34
4.6. Other statutory requirements not affected 36
Division 3 -- Notices and objections
4.7. Proponent where act relates to mining 36
4.8. Identification of proponents in other cases 37
4.9. Closing date for objections 37
4.10. Notification of acts 38
4.11. Further provision as to notices 39
4.12. Notice may relate to 2 or more acts 39
4.13. Project acts 39
4.14. Who gives notice 40
4.15. Prescribed provisions about notice 40
4.16. Right to object to doing of act 41
4.17. Requirements for objections 41
4.18. Time limit 42
4.19. Government party to notify the Commission of
objections 42
4.20. Withdrawal of request etc. by proponent 43
4.21. Withdrawal of proposal by Government party 43
Division 4 -- Negotiations and agreements
page iv
Native Title (State Provisions) Bill 1998
Contents
4.22. Meaning of "negotiation parties" 44
4.23. Delegation 44
4.24. Negotiations 44
4.25. Involvement of Commission, including mediation 45
4.26. Withdrawal of objection 45
4.27. Agreement made by parties 45
4.28. Commission's function in respect of an agreement 46
4.29. Effect of conditional agreement 46
Division 5 -- Determinations
Subdivision 1 -- Ministerial determination where
Commission determination unreasonably delayed
4.30. Responsible Minister may give Commission notice
as to urgency 47
4.31. Responsible Minister may make determination 48
4.32. Grounds for making determination 49
4.33. Consultation with Commonwealth Minister 49
4.34. Notice and submissions etc. 49
4.35. Material etc. taken into account 51
4.36. Minister's power not limited 51
4.37. No duty to make determination 51
4.38. Conditions to have contractual effect 52
4.39. Copy of determination to be given 52
4.40. Copy of determination to be laid before Parliament 52
Subdivision 2 -- Determination by Commission
4.41. Commission may notify intention to hear 53
4.42. Negotiations may continue 54
4.43. Objections may be dismissed 54
4.44. Time for making determination 55
4.45. No determination if agreement etc. 55
4.46. Making of determination 56
4.47. Criteria for making determinations 56
4.48. Issues on which parties agree 58
page v
Native Title (State Provisions) Bill 1998
Contents
4.49. Determination may provide for issues to be resolved
later 58
4.50. No reopening of certain issues previously decided 59
4.51. Copy of determination to be given 60
4.52. Effect of conditional determination 60
Division 6 -- Overruling of Commission's
determination
4.53. Responsible Minister may overrule 60
4.54. Declarations that responsible Minister may make 61
4.55. Grounds on which declaration may be made 62
4.56. Conditions in declaration 62
4.57. Responsible Minister may declare intention not to
overrule 62
Division 7 -- Applications
4.58. Definition 63
4.59. Form and contents of application 63
4.60. Material and fees to accompany applications 63
4.61. Application fee may be waived 63
Part 5 -- Consultation procedures for acts to
which section 24MD(6B) of the NTA applies
Division 1 -- Preliminary
5.1. Purpose of this Part 65
5.2. Acts to which this Part applies 65
5.3. Requirements to be satisfied before a Part 5 act is
done 65
5.4. Other statutory requirements not affected 67
Division 2 -- Notices and objections
5.5. Proponent where act relates to mining 67
5.6. Identification of proponents in other cases 67
5.7. Closing date for objections 68
5.8. Notification of acts by Government party 68
page vi
Native Title (State Provisions) Bill 1998
Contents
5.9. Further provision as to notices 69
5.10. Prescribed provisions about notice 69
5.11. Right to object to doing of act 69
5.12. Requirements for objections 70
5.13. Time limit 70
5.14. Government party to notify the Commission of
objections 71
5.15. Withdrawal of request etc. by proponent 71
5.16. Withdrawal of proposal by Government party 72
Division 3 -- Consultation and agreements
5.17. Meaning of "consultation parties" 72
5.18. Delegation 72
5.19. Consultation 73
5.20. Involvement of Commission, including mediation 73
5.21. Withdrawal of objection 74
5.22. Agreement made by parties 74
Division 4 -- Recommendations of the Commission
5.23. Commission may notify intention to hear 74
5.24. Consultations may continue 75
5.25. Objections may be dismissed 76
5.26. Time for making recommendation 76
5.27. No recommendation if agreement etc. 76
5.28. Making of recommendation 77
5.29. Criteria for making recommendations 77
5.30. Issues on which parties agree 78
5.31. Copy of recommendation to be given 78
5.32. Effect of recommendation 78
5.33. Effect of recommendation that specifies conditions 78
Division 5 -- Overruling of recommendations
5.34. Responsible Minister may overrule a
recommendation 79
5.35. Determinations that responsible Minister may make 79
5.36. Consultation before making of determination 80
page vii
Native Title (State Provisions) Bill 1998
Contents
5.37. Ground on which determination may be made 81
5.38. Conditions in determination 81
5.39. Responsible Minister may declare intention not to
overrule 82
Division 6 -- Applications
5.40. Definition 82
5.41. Form and contents of application 82
5.42. Material and fees to accompany applications 82
Part 6 -- Provisions relating to compensation
Division 1 -- Determination of compensation
6.1. Commission to determine compensation for certain
acts 83
6.2. Enforcement of order for compensation 83
Division 2 -- Principles to be applied in the
determination of compensation
6.3. No multiple compensation for essentially same act 84
6.4. Compensation where similar compensable interest
test satisfied 85
6.5. Compensation to be monetary 85
6.6. Requests for non-monetary compensation 85
Division 3 -- Determination of amounts to be held
in trust and payment of those amounts
6.7. Conditions for payment of amounts to be held in
trust 86
6.8. How amounts held in trust to be dealt with 86
6.9. Section 6.8(a) or (b) cases 88
6.10. Section 6.8(c) cases 88
6.11. Section 6.8(d) cases where monetary compensation 88
6.12. Section 6.8(d) cases where non-monetary
compensation 89
6.13. Section 6.8(d) cases where no compensation 89
6.14. Section 6.8(e) cases 89
page viii
Native Title (State Provisions) Bill 1998
Contents
6.15. Jurisdiction of the Commission under this Division 89
Part 7 -- Native Title Commission
Division 1 -- Commission established
7.1. Establishment of Commission 90
7.2. Functions of Commission 90
7.3. Some particular requirements to be observed 91
7.4. Membership of the Commission 91
7.5. Eligibility for appointment as Chief Commissioner 92
7.6. Appointment of member of NNTT 92
7.7. Qualifications for appointment 92
7.8. Appointment of ordinary members 93
7.9. Delegation to members 94
7.10. Other provisions relating to members 94
Division 2 -- Executive director and other staff
7.11. Executive Director of the Commission 94
7.12. Functions of Executive Director 95
7.13. Other staff of the Commission 95
7.14. Use of government staff etc. 96
7.15. Delegation 96
Division 3 -- Operation of commission
Subdivision 1 -- How Commission to be constituted
7.16. General position 97
7.17. Constitution of Commission for the performance of
certain functions 97
7.18. Concurrent operations 98
Subdivision 2 -- Arrangement of business
7.19. Arrangement of business of the Commission 98
7.20. Unavailability of member 99
7.21. Completion of part-heard proceedings 99
Subdivision 3 -- Hearings
7.22. Commission to hold hearings 100
page ix
Native Title (State Provisions) Bill 1998
Contents
7.23. Commission may determine matters to be covered
by proceedings 100
7.24. Opportunity to make submissions 100
7.25. Questions to be decided by majority 100
7.26. Representation before Commission 101
7.27. Participation by telephone, etc. 101
7.28. Hearings normally to be public 101
Subdivision 4 -- Evidence and information
7.29. Evidence and findings of other bodies 101
7.30. Commission may prohibit disclosure of evidence 102
7.31. Power of Commission to summon 102
7.32. Power of Commission to take evidence 102
7.33. Power of the Commission to require answers 103
7.34. Commission may authorize another person to take
evidence 103
7.35. Interpreters 103
7.36. Retention and copying of documents 104
Subdivision 5 -- Recommendations and
determinations
7.37. Determinations 104
Division 4 -- Financial Provisions
7.38. Funds for carrying out this Act 104
7.39. Native Title Commission Account 104
7.40. Application of Financial Administration and Audit
Act 1985 105
Division 5 -- General
7.41. Particular function to compile data 105
7.42. Public access to database 106
7.43. Assistance in relation to applications 106
7.44. Notices and other documents to be written in other
languages 107
7.45. Reference of question of law to the Supreme Court 107
7.46. Offences 108
page x
Native Title (State Provisions) Bill 1998
Contents
7.47. Disclosure of interests 109
7.48. Protection of members and persons appearing
before the Commission 109
7.49. Confidentiality 110
7.50. Annual report of Commission 111
7.51. Review of Act 111
Part 8 -- Miscellaneous
8.1. Regulations 112
8.2. Consequential amendments 112
Schedule 1 -- Provisions relating to members of
the Commission
1. Term of office 113
2. Remuneration, allowances and conditions of service 113
3. Oath or affirmation of office 113
4. Leave of absence 114
5. Resignation 114
6. Termination of appointment of NNTT member 114
7. Termination of appointment of member for
bankruptcy etc. 114
8. Suspension by Governor and termination 114
9. Termination on address of both Houses of
Parliament 115
Schedule 2 -- Appointment and conditions of
service of the Executive Director
1. Appointment 116
2. Conditions of service 116
3. Removal 116
4. Resignation 117
page xi
Native Title (State Provisions) Bill 1998
Contents
Schedule 3 -- Consequential amendments
Division 1 -- Mining Act 1978
1. The Act amended 118
2. Section 19 amended 118
3. Section 39A inserted 119
4. Section 49 amended 119
5. Section 56 amended 120
6. Section 56AA inserted 120
7. Section 67 amended 121
8. Section 70AA inserted 121
9. Section 70L amended 122
10 . Section 70O inserted 122
11 . Section 75 amended 123
12 . Section 85C inserted 123
13 . Section 90A inserted 124
Division 2 -- Petroleum Act 1967
14 . The Act amended 125
15 . Section 5 amended 125
16 . Section 11 amended 125
17 . Section 28B inserted 126
18 . Section 48AA inserted 126
19 . Section 48L inserted 127
20 . Section 105 amended 127
21 . Section 106 amended 127
22 . Section 116 amended 128
Division 3 -- Petroleum Pipelines Act 1969
23 . The Act amended 128
24 . Section 10A inserted 128
25 . Section 19 amended 129
Division 4 -- Constitution Acts Amendment Act 1899
26 . Schedule V amended 129
page xii
Native Title (State Provisions) Bill 1998
Contents
Division 5 -- Financial Administration and Audit Act
1985
27 . Schedule 1 amended 130
Division 6 -- Parliamentary Commissioner Act 1971
28 . Schedule 1 amended 130
page xiii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Native Title (State Provisions) Bill 1998
A Bill for
An Act to make provision as contemplated by the Native Title
Act 1993 of the Commonwealth for --
5 · the performance of functions under that Act by agencies
of the State and the establishment of a Commission for
that purpose; and
· alternative provisions to those contained in Part 2,
Division 3, Subdivision P of that Act, in accordance with
10 sections 43 and 43A of that Act;
to make provisions supplementary to section 24MD(6B) of that Act,
to consequentially amend certain Acts, and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Native Title (State Provisions) Bill 1998
Part 1 Preliminary
s. 1.1
Part 1 -- Preliminary
1.1. Short title
This Act may be cited as the Native Title (State Provisions)
Act 1998.
5 1.2. Commencement
(1) Subject to this section, this Act comes into operation on the day
on which it receives the Royal Assent.
(2) The provisions of Parts 2 and 5, Divisions 1 and 2 of Part 6 and
Part 7 come into operation --
10 (a) on such day as is fixed by proclamation; or
(b) on such days as are respectively so fixed.
(3) Part 3, other than section 3.2, comes into operation on the day
("the Part 3 commencement day") on which a determination
under section 43A of the NTA in relation to that Part comes into
15 force.
(4) Part 4, other than section 4.1, comes into operation on the day
("the Part 4 commencement day") on which a determination
under section 43 of the NTA in relation to that Part comes into
force.
20 (5) Division 3 of Part 6 comes into operation on the Part 4
commencement day.
(6) Section 8.2 comes into operation on the Part 3 commencement
day or the Part 4 commencement day, whichever is the sooner,
or, if those days are the same day, on that day.
25 (7) The Minister is to cause notice of each of the Part 3
commencement day and the Part 4 commencement day to be
page 2
Native Title (State Provisions) Bill 1998
Preliminary Part 1
s. 1.3
published in the Gazette as soon as it is reasonably practicable
for the Minister to do so.
1.3. Act binds the Crown
This Act binds the Crown --
5 (a) in right of Western Australia; and
(b) so far as the legislative power of the Parliament permits,
in all its other capacities.
1.4. Interpretation
(1) In this Act the Native Title Act 1993 of the Commonwealth is
10 referred to as the NTA.
(2) A word or expression used in this Act has the same meaning as
it has in the NTA unless --
(a) this Act gives it another meaning; or
(b) the contrary intention appears in some other way.
15 Note: A list of words and expressions used in this Act and defined in the NTA is attached to
this Act. The list shows where in the NTA each definition can be found.
(3) The expression "Commonwealth Minister" when used in this
Act in relation to a provision of the NTA has the same meaning
as it has in that provision.
20 (4) In this Act, unless the contrary intention appears --
"Chief Commissioner" means the person appointed as such
under section 7.4(2);
"closing date", in relation to a Part 3 act, a Part 4 act or a Part 5
act, means --
25 (a) the date --
(i) fixed under section 3.11, 4.9 or 5.7; or
(ii) applying because of section 4.9 (3),
page 3
Native Title (State Provisions) Bill 1998
Part 1 Preliminary
s. 1.4
for the lodgment of objections to the doing of the act;
or
(b) the later date fixed under section 3.18(2), 4.18(2) or
5.13(2) for that purpose,
5 as the case may require;
"Commission" means the body established by section 7.1;
"consultation parties" has the meaning given by section 3.22
or 5.17, as the case may require;
"Executive Director" means the person holding or acting in the
10 office created by section 7.11;
"Government party" means the person who has power to do,
on behalf of the State, an act of the kind referred to in
section 3.5, 4.4 or 5.2, as the case may require;
"member" means a member of the Commission and includes
15 the Chief Commissioner;
"negotiation parties" has the meaning given by section 4.22;
"objector" means a person who has made an objection under
section 3.16, 4.16 or 5.11, as the case may require, that has
not been withdrawn or dismissed;
20 "ordinary member" means a member of the Commission other
than the Chief Commissioner;
"Part 3 act" has the meaning given by section 3.5;
"Part 4 act" has the meaning given by section 4.4 and includes
an act to which section 3.7 applies;
25 "Part 5 act" has the meaning given by section 5.2;
"proponent" means a person who is a proponent under
section 3.9, 3.10, 4.7, 4.8, 5.5 or 5.6, as the case may
require;
page 4
Native Title (State Provisions) Bill 1998
Preliminary Part 1
s. 1.4
"recommendation" means a recommendation of the
Commission under section 3.33 or 5.28, as the case may
require;
"registered native title rights and interests", in relation to a
5 person, has the meaning given by section 30(3) of the NTA
in relation to a native title party;
"relevant land", in relation to a Part 3 act, a Part 4 act or a
Part 5 act means the land or waters to which the act relates;
"responsible Minister", in relation to a Part 3 act, a Part 4 act
10 or a Part 5 act, means the Minister responsible for the
administration of the Act under which the act would be
done.
(5) Notes in this Act are provided to assist understanding and do not
form part of the Act.
page 5
Native Title (State Provisions) Bill 1998
Part 2 Vesting of NTA functions in agencies of the State
s. 2.1
Part 2 -- Vesting of NTA functions in agencies of
the State
2.1. Authorization of State bodies and office-holders for
purposes of section 199F of the NTA
5 (1) The State Minister may on behalf of the State agree to any
delegation in respect of the State by the Native Title Registrar
under the power conferred by section 199F of the NTA.
(2) Where in exercise of the power referred to in subsection (1) the
Native Title Registrar delegates powers to --
10 (a) the holder of an office; or
(b) a body,
established by or under a written law, the holder of the office or
the body may exercise the powers in accordance with the
delegation.
15 2.2. Commission can be a recognised body under section 207A(1)
of the NTA
The State Minister may nominate the Commission to the
Commonwealth Minister for the purposes of section 207A of
the NTA, and the Commission may operate in accordance with
20 a determination under section 207A(1) and any regulations
made under section 207A(5) of the NTA.
2.3. Nominations by State Minister for purposes of
section 207B(1) of the NTA
(1) The State Minister may make any nomination to the
25 Commonwealth Minister provided for by section 207B(1) and
(2) of the NTA.
page 6
Native Title (State Provisions) Bill 1998
Vesting of NTA functions in agencies of the State Part 2
s. 2.4
(2) A nomination --
(a) may be made from time to time; and
(b) may be in such terms,
as the State Minister thinks expedient.
5 (3) A nomination may be in respect of --
(a) the Commission;
(b) any office established for the purposes of the
Commission; or
(c) one or more other offices, tribunals or bodies established
10 by or under a written law.
2.4. Authorization of State entities and office-holders for
purposes of section 207B of the NTA
(1) Where, as provided by section 207B(6) of the NTA, functions
and powers are vested in --
15 (a) a tribunal or body; or
(b) an office,
established by or under a written law, the tribunal or body or the
holder of the office may perform the functions and exercise the
powers, and is to do so in accordance with the relevant
20 determination under section 207B(3) of the NTA.
(2) If regulations are made under section 207B(8) of the NTA, a
tribunal or body or the holder of an office referred to in
subsection (1) may also perform functions and exercise powers
vested in the tribunal, body or office by those regulations.
page 7
Native Title (State Provisions) Bill 1998
Part 2 Vesting of NTA functions in agencies of the State
s. 2.5
2.5. Transitional provisions
The regulations may make transitional provisions, so far as the
legislative power of the Parliament permits, that are necessary
or expedient to be made in connection with the making or
5 revocation of a determination by the Commonwealth Minister in
relation to the State under section 207A(1) or 207B(3) of the
NTA.
page 8
Native Title (State Provisions) Bill 1998
Consultation procedures for alternative provision areas Part 3
Preliminary Division 1
s. 3.1
Part 3 -- Consultation procedures for alternative
provision areas
Division 1 -- Preliminary
3.1. Definitions
5 In this Part --
"alternative provision area" has the meaning given by
section 43A(2) of the NTA except that it does not include
an area --
(a) that is covered by a grant for the benefit of
10 Aboriginal persons; and
(b) over which native title rights and interests have not
been extinguished;
"grant for the benefit of Aboriginal persons" means --
(a) a lease granted for a fixed term or in perpetuity for
15 the use and benefit of Aboriginal persons under --
(i) section 9 or 116 of the Land Act 1933; or
(ii) section 79 or 83 of the Land Administration
Act 1997;
or
20 (b) a reserve under section 29 of the Land Act 1933 or
section 41 of the Land Administration Act 1997 for
the use and benefit of Aboriginal persons where the
land concerned is used for that purpose.
page 9
Native Title (State Provisions) Bill 1998
Part 3 Consultation procedures for alternative provision areas
Division 1 Preliminary
s. 3.2
3.2. Request for determination under section 43A(1)(b) of the
NTA
The State Minister may, on behalf of the State, request the
Commonwealth Minister to make a determination under
5 section 43A(1)(b) of the NTA that --
(a) the provisions of this Part comply with section 43A(4)
and (6) of the NTA; and
(b) the requirements of section 43A(7) are complied with.
3.3. Transitional provisions
10 The regulations may make transitional provisions, so far as the
legislative power of the Parliament permits, that are necessary
or expedient to be made in connection with the making,
amendment or revocation of a determination referred to in
section 3.2.
15 3.4. Purpose of this Part
The provisions of this Part --
(a) are alternative provisions to those contained in Part 2,
Division 3, Subdivision P of the NTA in relation to all
acts to which that Subdivision applies that are
20 attributable to the State; and
(b) are permitted by section 43A(1) of the NTA to have
effect instead of Subdivision P while a determination
referred to in section 3.2 is in force,
in relation to an area of land or waters that is an alternative
25 provision area.
Note: Part 2, Division 3, Subdivision P of the NTA contains right to negotiate procedures in
relation to some future acts. For an overview of that Subdivision, see section 25 of the
NTA.
page 10
Native Title (State Provisions) Bill 1998
Consultation procedures for alternative provision areas Part 3
Relevant future acts and their validity Division 2
s. 3.5
Division 2 -- Relevant future acts and their validity
3.5. Acts to which this Part applies
(1) This Part applies to a future act ("a Part 3 act") done by the
State that --
5 (a) comes within --
(i) section 26(1A)(a) and (c) of the NTA; or
(ii) section 26(1)(a) and (c) of the NTA;
(b) does not come within section 26(2) of the NTA; and
(c) subject to subsection (3), relates to any extent to an area
10 of land or waters that is an alternative provision area.
(2) This Part applies to an act only to the extent that the act relates
to a place that is on the landward side of the mean high-water
mark of the sea.
(3) This Part does not apply to a compulsory acquisition that comes
15 within section 26(1)(c)(iii) of the NTA if it involves the
acquisition of native title rights and interests in relation to land
or waters in both an alternative provision area and an area that is
not an alternative provision area.
(4) If by operation of section 43B of the NTA a future act is taken
20 to consist of 2 separate acts, this Part applies only to the
separate act that comes within paragraph(c)(i) of that section.
(5) This Part does not apply to an act in respect of which a
determination is made under section 3.7.
3.6. Circumstances in which act is not valid
25 (1) A Part 3 act is not valid as mentioned in --
(a) section 24ID(1)(a) of the NTA; or
page 11
Native Title (State Provisions) Bill 1998
Part 3 Consultation procedures for alternative provision areas
Division 2 Relevant future acts and their validity
s. 3.6
(b) section 24MD(1) of the NTA,
to the extent that it affects native title unless, before it is done,
the requirements of one of the paragraphs of subsection (2) are
satisfied in respect of the act.
5 (2) The requirements are --
(a) no objection is lodged under section 3.16 before the
close of business on the closing date;
(b) after the closing date, but immediately before the act is
done, there is no native title party in relation to any part
10 of the relevant land;
(c) all objections lodged under section 3.16 before the close
of business on the closing date are --
(i) withdrawn under section 3.26; or
(ii) dismissed under section 3.30;
15 (d) an agreement of the kind described in section 3.27 is
made by the consultation parties and given to the
Commission under that section;
(e) a recommendation is made that the act be done, or be
done subject to conditions being complied with, and the
20 recommendation --
(i) has not been overruled under section 3.39; and
(ii) is no longer capable of being overruled --
(I) because of section 3.39(2); or
(II) because the responsible Minister has
25 given an instrument to the Commission
under section 3.44;
(f) a recommendation that the act not be done is overruled
under section 3.39;
or
page 12
Native Title (State Provisions) Bill 1998
Consultation procedures for alternative provision areas Part 3
Notices and objections Division 3
s. 3.7
(g) a recommendation --
(i) that the act be done; or
(ii) that the act be done subject to conditions being
complied with,
5 is overruled under section 3.39 and a determination is
made under that section that the act may be done subject
to conditions being complied with.
(3) In subsection (2) --
"close of business" means the close of business of the
10 Government party as specified in accordance with
section 3.13(2)(c).
3.7. Part 4 may be applied to a Part 3 act
The Government party may, on the application of a person who
has applied for, or made a request or submission for, the doing
15 of an act that would otherwise come within section 3.5,
determine that Part 3 is not to apply to the act but that it is to be
treated instead as a Part 4 act.
3.8. Other statutory requirements not affected
Nothing in section 3.6, or in an agreement, recommendation or
20 determination under this Part, authorizes the Government party
to do a Part 3 act without complying with any requirements of
another written law that apply to the doing of the act.
Division 3 -- Notices and objections
3.9. Proponent where act relates to mining
25 Where the Part 3 act, if done, would --
(a) create or vary a right to mine; or
page 13
Native Title (State Provisions) Bill 1998
Part 3 Consultation procedures for alternative provision areas
Division 3 Notices and objections
s. 3.10
(b) renew, re-grant, re-make or extend the term of an
instrument creating a right to mine,
the proponent for the purposes of this Part is the person who
under the relevant written law has applied for the act to be done.
5 3.10. Identification of proponents in other cases
(1) This section applies where the Part 3 act is not covered by
section 3.9.
(2) The Government party is to determine the person or persons
(if any) who, because of an application, request or submission
10 made by the person or persons for the act to be done, are to be
treated as the proponent or proponents in relation to the act for
the purposes of this Part.
(3) The Government party may amend a determination under
subsection (2).
15 (4) The Government party must give notice in writing to each
proponent of --
(a) a determination under subsection (2); and
(b) an amendment of a determination,
relating to that proponent.
20 (5) If there is any other consultation party in relation to the act at
the time when a notice is given under subsection (4) the
Government party must give the copy of the notice to each other
consultation party.
3.11. Closing date for objections
25 (1) The Government party is to fix, for every Part 3 act, a closing
date for the lodgment of objections to the doing of the act.
page 14
Native Title (State Provisions) Bill 1998
Consultation procedures for alternative provision areas Part 3
Notices and objections Division 3
s. 3.12
(2) The Government party may fix a later closing date for the
lodgment of objections to the doing of a Part 3 act if the
Government party is satisfied that it has not been reasonably
practicable for section 3.13(1) to be complied with in respect of
5 the act.
3.12. Notification of acts
Before a Part 3 act is done notice in writing of the act must be
given to --
(a) any registered native title body corporate in relation to
10 any of the relevant land;
(b) any registered native title claimant in relation to any of
the relevant land; and
(c) any representative body for an area that includes any of
the relevant land.
15 3.13. Further provision as to notices
(1) The notices required by section 3.12 in respect of a Part 3 act
must be given at least 3 months before the closing date.
(2) Every notice must show --
(a) the closing date;
20 (b) the title of the Government party who will receive
objections and the address at which they may be lodged;
and
(c) the time of close of business on the closing date of that
Government party.
25 (3) The particulars referred to in subsection (2)(b) and (c) are to be
as determined by the Government party.
page 15
Native Title (State Provisions) Bill 1998
Part 3 Consultation procedures for alternative provision areas
Division 3 Notices and objections
s. 3.14
3.14. Who gives notice
(1) The notices required by section 3.12 are to be given --
(a) by the Government party where the Part 3 act is a
compulsory acquisition that comes within
5 section 26(1)(c)(iii) of the NTA; or
(b) in the case of any other Part 3 act, by persons of a class
prescribed by the regulations for the purposes of this
paragraph.
(2) A proponent or other person who is required to give any notice
10 is to submit to the Government party proof of the notice having
been given.
3.15. Prescribed provisions about notice
(1) The regulations may make provision about the giving of notice
under this Division including how the requirement to give
15 notice --
(a) may be satisfied either generally or in particular types of
cases; and
(b) may be satisfied in conjunction with the giving of notice
under another written law that relates to a Part 3 act.
20 (2) Regulations of the kind referred to in subsection (1)(b) may be
expressed to be made under section 8.1 and under powers
conferred by another written law.
3.16. Right to object to doing of act
(1) A person that is, in relation to any part of the relevant land --
25 (a) a registered native title body corporate; or
(b) subject to subsection (3), a registered native title
claimant,
may lodge an objection to the doing of a Part 3 act.
page 16
Native Title (State Provisions) Bill 1998
Consultation procedures for alternative provision areas Part 3
Notices and objections Division 3
s. 3.17
(2) An objection may be lodged only on the ground that the doing
of the act in relation to the relevant land would affect the
person's registered native title rights and interests in relation to
that land.
5 (3) Subsection (1)(b) does not apply if there are one or more
registered native title bodies corporate in relation to all of the
relevant land.
3.17. Requirements for objections
An objection must --
10 (a) be lodged with the Government party in accordance with
the requirements of the relevant notice;
(b) state the manner in which it is said that the doing of the
act would affect the objector's registered native title
rights and interests in relation to the relevant land; and
15 (c) comply with any other requirements of the regulations
as to the form or content of objections.
3.18. Time limit
(1) An objection against a Part 3 act cannot be lodged after the
closing date.
20 (2) Where, on the application of a person made before the closing
date, the Commission is satisfied that exceptional circumstances
so require the Commission may --
(a) fix a later closing date for the lodgement of objections to
the doing of the act; and
25 (b) give such directions as the Commission thinks
appropriate as to the giving of notice of the date so
fixed.
page 17
Native Title (State Provisions) Bill 1998
Part 3 Consultation procedures for alternative provision areas
Division 3 Notices and objections
s. 3.19
3.19. Government party to notify the Commission of objections
(1) The Government party must notify --
(a) the Commission; and
(b) any proponent,
5 of the particulars of all objections against a Part 3 act lodged on
or before the closing date.
(2) Notification under subsection (1) must be given as soon as is
practicable after the closing date and in any case not later than
14 days after that date.
10 3.20. Withdrawal of request etc. by proponent
(1) The proponent in relation to a Part 3 act may give notice in
writing to --
(a) the Commission;
(b) the other consultation parties (if any); and
15 (c) the Government party,
that the proponent's application, request or submission for the
doing of the act is withdrawn.
(2) If there is more than one proponent a notice under
subsection (1) is of no effect unless it is given by all of the
20 proponents jointly.
(3) The giving of a notice under subsection (1) to all of the persons
referred to in that subsection brings to an end any procedures
that have begun under this Part.
3.21. Withdrawal of proposal by Government party
25 (1) The application of section 3.20 extends to cases where --
(a) section 3.9 does not apply; and
page 18
Native Title (State Provisions) Bill 1998
Consultation procedures for alternative provision areas Part 3
Consultation and agreements Division 4
s. 3.22
(b) a proponent has not been determined under
section 3.10(2).
(2) In that event --
(a) a notice may be given by the Government party that the
5 act will not be done; and
(b) the provisions of section 3.20 apply with all necessary
changes.
Division 4 -- Consultation and agreements
3.22. Meaning of "consultation parties"
10 References in this Part to consultation parties in relation to a
Part 3 act are references to --
(a) each proponent under section 3.9 and each objector; or
(b) where section 3.9 does not apply --
(i) the Government party;
15 (ii) each objector; and
(iii) any person determined under section 3.10(2) to
be a proponent but only so long as the person
consents to being a consultation party.
3.23. Delegation
20 (1) Where a Government party is a Minister of the Crown the
consultation functions of the Government party under this Part
may be performed by any official authorized by the Government
party for that purpose.
(2) Nothing in this Part is to be read as preventing the exercise by a
25 Government party of a power of delegation conferred by a
written law.
page 19
Native Title (State Provisions) Bill 1998
Part 3 Consultation procedures for alternative provision areas
Division 4 Consultation and agreements
s. 3.24
3.24. Consultation
(1) If a Part 3 act is a compulsory acquisition that comes within
section 26(1)(c)(iii) of the NTA, the consultation parties must
consult with each other about ways of minimizing the impact of
5 the act on registered native title rights and interests in relation to
the relevant land.
(2) In the case of any other Part 3 act, the consultation parties must
consult with each other about ways of minimizing the impact of
the act on registered native title rights and interests in relation to
10 the relevant land, including about --
(a) any access to the relevant land; or
(b) the way in which any thing authorized by the act may be
done.
3.25. Involvement of Commission, including mediation
15 (1) If any of the consultation parties requests the Commission to do
so, the Commission must mediate among the parties to assist in
resolving the differences between them on the relevant matters
mentioned in section 3.24.
(2) The consultation parties must report to the Commission on
20 progress made in the consultations at such time or times as the
Commission may in writing direct.
(3) If the Commission considers that the consultation parties or any
of them are not making sufficient attempts to resolve their
differences the Commission is to use its best endeavours --
25 (a) to have the parties consult together as required by
section 3.24; and
(b) to bring about --
(i) a resolution of the differences between them on
the relevant matters mentioned in section 3.24; or
page 20
Native Title (State Provisions) Bill 1998
Consultation procedures for alternative provision areas Part 3
Recommendations of the Commission Division 5
s. 3.26
(ii) the withdrawal of the objections.
3.26. Withdrawal of objection
(1) At any time before a recommendation is made under Division 5
in relation to an objection the objector may withdraw the
5 objection by notice in writing given to the Commission.
(2) The Commission is to notify the consultation parties of any such
withdrawal.
3.27. Agreement made by parties
If at any time before a recommendation is made under
10 Division 5 the consultation parties make an agreement that
resolves the issues on which the objections were based, they
may give a copy of it to the Commission.
Division 5 -- Recommendations of the Commission
3.28. Commission may notify intention to hear
15 (1) The Commission may give notice to the consultation parties that
it intends to hear and determine objections to the doing of a
Part 3 act if --
(a) all of the objections have not been withdrawn; or
(b) an agreement of the kind described in section 3.27 has
20 not been made between the consultation parties and
given to the Commission under that section.
(2) A notice under subsection (1) in respect of a Part 3 act may be
given by the Commission --
(a) of its own motion, but only after the consultation period
25 for that act has expired; or
(b) subject to subsection (3), on the application of a
consultation party.
page 21
Native Title (State Provisions) Bill 1998
Part 3 Consultation procedures for alternative provision areas
Division 5 Recommendations of the Commission
s. 3.29
(3) The Commission must not grant an application made under
subsection (2)(b) in respect of a Part 3 act before the expiry of
the consultation period for the act unless it is satisfied --
(a) that the applicant has made reasonable endeavours to
5 resolve the issues on which the objections are based; and
(b) that further consultation is not likely to serve any
purpose in that respect.
(4) Subject to subsection (3), the Commission must grant an
application made under subsection (2)(b) if the application
10 complies with section 3.46 and is accompanied by the things
required by section 3.47.
(5) Without limiting section 7.23, a notice under subsection (1) may
relate to more than one act and the objections to the doing of the
act.
15 (6) In this section --
"consultation period" means the period beginning on the
closing date and ending 4 months after that date.
3.29. Consultations may continue
Where the Commission --
20 (a) has given notice under section 3.28; but
(b) has not made a recommendation,
in respect of a Part 3 act, the consultation parties may continue
to consult together with a view to bringing about --
(c) a resolution of the issues on which the objections are
25 based; and
(d) the withdrawal of the objections.
page 22
Native Title (State Provisions) Bill 1998
Consultation procedures for alternative provision areas Part 3
Recommendations of the Commission Division 5
s. 3.30
3.30. Objections may be dismissed
The Commission must dismiss an objection if --
(a) it is not made by a registered native title body corporate
or a registered native title claimant as required by
5 section 3.16(1); or
(b) the rights and interests claimed to be affected by the
doing of the act are not registered native title rights and
interests of the objector.
3.31. Time for making recommendation
10 (1) Subject to section 3.32, the Commission must take all
reasonable steps to make a recommendation in respect of a
Part 3 act within the period of 4 months ("the allowed period")
starting when a notice under section 3.28 is given in respect of
the act.
15 (2) If it appears to the Commission that it will not make a
recommendation within the allowed period, the Commission
may before the end of the period ask the responsible Minister to
extend the period, and that Minister may comply with the
request.
20 (3) An extended period may be further extended under
subsection (2).
3.32. No recommendation if agreement etc.
The Commission must not make a recommendation in respect of
a Part 3 act if --
25 (a) all of the objections to the doing of the act have been
withdrawn; or
(b) an agreement of the kind described in section 3.27 has
been made between the consultation parties and given to
the Commission under that section.
page 23
Native Title (State Provisions) Bill 1998
Part 3 Consultation procedures for alternative provision areas
Division 5 Recommendations of the Commission
s. 3.33
3.33. Making of recommendation
(1) Except where section 3.32 applies, the Commission must make
one of the following recommendations --
(a) that the act be done;
5 (b) that the act be done subject to specified conditions being
complied with by any of the consultation parties;
(c) that the act not be done.
(2) The Commission may specify conditions under
subsection (1)(b) only if they relate to the doing of the act as it
10 affects registered native title rights and interests in relation to
the relevant land.
(3) The Commission must not specify a condition under
subsection (1)(b) that has the effect that an objector is to be
entitled to payments worked out by reference to --
15 (a) the amount of profits made;
(b) any income derived; or
(c) any things produced,
by any other consultation party as a result of doing anything in
relation to the relevant land after the act is done.
20 3.34. Criteria for making recommendations
(1) In making its recommendation in respect of any Part 3 act, the
Commission must --
(a) take into account the impact of the act on registered
native title rights and interests of the objectors in
25 relation to the relevant land; and
(b) unless it recommends that the act not be done, consider
ways in which that impact can be minimized.
page 24
Native Title (State Provisions) Bill 1998
Consultation procedures for alternative provision areas Part 3
Recommendations of the Commission Division 5
s. 3.35
(2) In addition, in making its recommendation in respect of a Part 3
act that is not a compulsory acquisition that comes within
section 26(1)(c)(iii) of the NTA, the Commission must consider
questions of --
5 (a) access to the relevant land; and
(b) the way in which any thing authorized by the act may be
done.
(3) The Commission must also take into account the nature and
extent of --
10 (a) existing rights and interests that are not native title rights
and interests, in relation to the relevant land; and
(b) existing use of the relevant land by persons other than
the objectors.
3.35. Issues on which parties agree
15 (1) Before making its recommendation, the Commission must
ascertain whether the consultation parties have an agreed
position on any issues relevant to its recommendation.
(2) If there is any such issue, and all of the consultation parties
consent, the Commission in making its recommendation --
20 (a) must take that agreed position into account; and
(b) need not take into account the matters mentioned in
section 3.34, to the extent that the matters relate to that
issue.
3.36. Copy of recommendation to be given
25 The Commission must give a copy of any recommendation
under section 3.33 to the consultation parties and the
responsible Minister.
page 25
Native Title (State Provisions) Bill 1998
Part 3 Consultation procedures for alternative provision areas
Division 6 Overruling of recommendations
s. 3.37
3.37. Effect of recommendation
A recommendation must be complied with by the Government
party unless it is overruled by a determination of the responsible
Minister under section 3.39.
5 3.38. Effect of recommendation that specifies conditions
(1) A recommendation by the Commission that a Part 3 act may be
done subject to conditions being complied with by the parties
has effect, if the act is done, as if the conditions were terms of a
contract among the consultation parties.
10 (2) Subsection (1) is in addition to the effect that the
recommendation has under section 3.37.
(3) If an objector is a registered native title claimant, any other
person included in the native title claim group concerned is
taken to be a consultation party for the purposes only of this
15 section.
Division 6 -- Overruling of recommendations
3.39. Responsible Minister may overrule a recommendation
(1) Subject to sections 3.41 and 3.42, the responsible Minister may,
by writing given to the Commission, make a determination in
20 accordance with section 3.40.
(2) A determination cannot be made by the responsible Minister in
respect of a recommendation after 2 months have expired since
the recommendation was made.
(3) The Commission must give a copy of the determination to the
25 consultation parties concerned.
page 26
Native Title (State Provisions) Bill 1998
Consultation procedures for alternative provision areas Part 3
Overruling of recommendations Division 6
s. 3.40
3.40. Determinations that responsible Minister may make
(1) In the case of a recommendation under section 3.33(1)(a), the
responsible Minister may make a determination that the
recommendation is overruled and either --
5 (a) that the act to which it relates must not be done; or
(b) that the act to which it relates may be done subject to
specified conditions to be complied with by any of the
consultation parties.
(2) In the case of a recommendation under section 3.33(1)(b), the
10 responsible Minister may make a determination that the
recommendation is overruled and --
(a) that the act to which it relates must not be done;
(b) that the act to which it relates may be done; or
(c) that the act to which it relates may be done subject to
15 specified conditions to be complied with by any of the
consultation parties.
(3) In the case of a recommendation under section 3.33(1)(c), the
responsible Minister may make a determination that the
recommendation is overruled and either --
20 (a) that the act to which it relates may be done; or
(b) that the act to which it relates may be done subject to
specified conditions to be complied with by any of the
consultation parties.
(4) The responsible Minister may only specify conditions under this
25 section that relate to the doing of the act as it affects registered
native title rights and interests in relation to the relevant land.
(5) In this section --
"specified" means specified in the determination.
page 27
Native Title (State Provisions) Bill 1998
Part 3 Consultation procedures for alternative provision areas
Division 6 Overruling of recommendations
s. 3.41
3.41. Consultation before making of determination
(1) This section applies if the effect of the responsible Minister's
determination under section 3.39 is that the act may be done --
(a) unconditionally;
5 (b) subject to conditions to be complied with; or
(c) subject to conditions to be complied with that are
different in any respect from the conditions specified in
the recommendation that is overruled.
(2) If this section applies, the responsible Minister may only make a
10 determination under section 3.39 after he or she has --
(a) consulted the State Minister principally responsible for
indigenous affairs about the determination in question;
and
(b) has taken into account any recommendation or advice
15 made or given by that Minister.
3.42. Ground on which determination may be made
(1) The responsible Minister may only make a determination under
section 3.39 on the ground that it is in the interests of the State
to do so.
20 (2) In subsection (1) --
"in the interests of the State" includes --
(a) for the social or economic benefit of the State
(including of Aboriginal peoples); and
(b) in the interests of the relevant region or locality in the
25 State.
3.43. Conditions in determination
(1) Any provision in a determination by the responsible Minister
under section 3.39 that a Part 3 act may be done subject to
page 28
Native Title (State Provisions) Bill 1998
Consultation procedures for alternative provision areas Part 3
Applications Division 7
s. 3.44
conditions being complied with by any of the consultation
parties has effect, if the act is done, in accordance with
subsection (2).
(2) Any such conditions have effect, in addition to the effect of the
5 determination apart from this section, as if they were the terms
of a contract among the consultation parties.
(3) If an objector is a registered native title claimant, any other
person included in the native title claim group concerned is
taken to be a consultation party for the purposes only of this
10 section.
3.44. Responsible Minister may declare intention not to overrule
(1) The responsible Minister may by instrument given to the
Commission declare that he or she does not intend to exercise
any power conferred by section 3.39 in respect of a particular
15 recommendation.
(2) If an instrument is given to the Commission under
subsection (1) the responsible Minister --
(a) cannot revoke the instrument; and
(b) cannot exercise any power conferred by section 3.39 in
20 respect of the recommendation concerned.
(3) The Commission is to notify the consultation parties of the
giving of an instrument to it under subsection (1).
Division 7 -- Applications
3.45. Definition
25 In this Division --
"application" means an application under section 3.28(2)(b).
page 29
Native Title (State Provisions) Bill 1998
Part 3 Consultation procedures for alternative provision areas
Division 8 Judicial Review
s. 3.46
3.46. Form and contents of application
An application must --
(a) be made in accordance with the regulations; and
(b) comply with the requirements of the regulations as to
5 the form or content of applications.
3.47. Material and fees to accompany applications
An application must be accompanied by any prescribed
documents and any prescribed fee.
3.48. Application fee may be waived
10 The Executive Director may waive payment of whole or part of
a fee payable under section 3.47 where --
(a) having regard to the income, day to day living expenses,
liabilities and assets of the person liable to pay the fee,
in the Executive Director's opinion, payment of the fee
15 would cause financial hardship to the person; or
(b) for any other reason the Executive Director considers
appropriate to do so.
Division 8 -- Judicial Review
3.49. Application for review
20 (1) A consultation party in relation to a Part 3 act may apply to the
Supreme Court for a review of a decision to which this section
applies.
(2) The decisions referred to are --
(a) a dismissal under section 3.30 of an objection to the
25 doing of the act;
page 30
Native Title (State Provisions) Bill 1998
Consultation procedures for alternative provision areas Part 3
Judicial Review Division 8
s. 3.50
(b) a recommendation of the Commission under section
3.33 (1) (a) or (b) in respect of the act; and
(c) a determination of the responsible Minister under
section 3.39 (1) that the act --
5 (i) may be done; or
(ii) may be done subject to conditions.
3.50. Time limit for application
An application for review must be made not later than 28 days
after the day on which --
10 (a) notice of the dismissal of the objection is given to the
applicant;
(b) a copy of the recommendation is given to the applicant
under section 3.36; or
(c) a copy of the determination is given to the applicant
15 under section 3.39 (3),
as the case may be.
3.51. Procedure
The manner of making the application and other matters relating
to the proceedings are to be as prescribed by rules of court.
20 3.52. Grounds on which application may be made
(1) An application for review may only be made on a ground or
grounds that would support an application for a remedy of --
(a) injunction;
(b) declaratory judgment; or
25 (c) an order in the nature of a prerogative writ.
(2) The application is not required to specify the kind of remedy
that is sought but is taken to be an application for the grant of
page 31
Native Title (State Provisions) Bill 1998
Part 3 Consultation procedures for alternative provision areas
Division 8 Judicial Review
s. 3.53
such of the remedies referred to in subsection (1) as the Court
considers appropriate in the circumstances.
3.53. Powers of Court
On the making of an application for review the Court may grant
5 such relief as it considers appropriate in the circumstances,
including relief by way of any of the remedies referred to in
section 3.52 (1).
3.54. Effect on other remedies
This Division displaces, in respect of a decision to which it
10 applies, the right of a consultation party to apply in other
proceedings for relief of a kind that is available under this
Division.
page 32
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Preliminary Division 1
s. 4.1
Part 4 -- Right to negotiate procedures for areas not
covered by Part 3
Division 1 -- Preliminary
4.1. Request for determination under section 43(1)(b) of the
5 NTA
The State Minister may, on behalf of the State, request the
Commonwealth Minister to make a determination under
section 43(1)(b) of the NTA that the provisions of this Part
comply with section 43(2) of the NTA.
10 4.2. Transitional provisions
The regulations may make transitional provisions, so far as the
legislative power of the Parliament permits, that are necessary
or expedient to be made in connection with the making,
amendment or revocation of a determination referred to in
15 section 4.1.
4.3. Purpose of this Part
The provisions of this Part --
(a) are alternative provisions to those contained in Part 2,
Division 3, Subdivision P of the NTA; and
20 (b) are permitted by section 43(1) of the NTA to have effect
instead of Subdivision P while a determination referred
to in section 4.1 is in force,
in relation to acts to which that Subdivision applies that are
attributable to the State.
25 Note: Part 2, Division 3, Subdivision P of the NTA contains right to negotiate procedures in
relation to some future acts. For an overview of that Subdivision, see section 25 of the
NTA.
page 33
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 2 Relevant future acts and their validity
s. 4.4
Division 2 -- Relevant future acts and their validity
4.4. Acts to which this Part applies
(1) This Part applies to a future act ("a Part 4 act") done by the
State that --
5 (a) comes within --
(i) section 26(1A)(a) and (c) of the NTA; or
(ii) section 26(1)(a) and (c) of the NTA;
(b) does not come within section 26(2) of the NTA; and
(c) subject to section 3.7, is not a Part 3 act as defined in
10 section 3.5.
(2) This Part applies to an act only to the extent that the act relates
to a place that is on the landward side of the mean high-water
mark of the sea.
(3) If by operation of section 43B of the NTA a future act is taken
15 to consist of 2 separate acts --
(a) this Part applies only to the separate act that comes
within paragraph (c)(ii) of that section; and
(b) for the purposes of this Part that act is taken to be done
at the time provided for by paragraph (d) of that section.
20 4.5. Circumstances in which act is not valid
(1) A Part 4 act is not valid as mentioned in --
(a) section 24ID(1)(a) of the NTA; or
(b) section 24MD(1) of the NTA,
to the extent that it affects native title unless, before it is done,
25 the requirements of one of the paragraphs of subsection (2) are
satisfied in respect of the act.
page 34
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Relevant future acts and their validity Division 2
s. 4.5
(2) The requirements are --
(a) no objection is lodged under section 4.16 before the
close of business on the closing date;
(b) after the closing date, but immediately before the act is
5 done, there is no native title party in relation to any part
of the relevant land;
(c) all objections lodged under section 4.16 before the close
of business on the closing date are --
(i) withdrawn under section 4.26; or
10 (ii) dismissed under section 4.43;
(d) an agreement of the kind mentioned in section 4.24 is --
(i) made by the negotiation parties;
(ii) given to the Commission under section 4.27; and
(iii) accepted by the Commission under
15 section 4.28(2);
(e) a determination is made under section 4.31 that the act
may be done, or may be done subject to conditions
being complied with;
(f) a determination is made under section 4.46 that the act
20 may be done, or may be done subject to conditions
being complied with, and the determination --
(i) has not been overruled under section 4.53; and
(ii) is no longer capable of being overruled --
(I) because of section 4.53(2); or
25 (II) because the responsible Minister has
given an instrument to the Commission
under section 4.57;
(g) a determination that the act must not be done is declared
to be overruled under section 4.53; or
page 35
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 3 Notices and objections
s. 4.6
(h) a determination under section 4.46 --
(i) that the act may be done; or
(ii) that the act may be done subject to conditions
being complied with,
5 is overruled under section 4.53 and a declaration is made
under that section that the act may be done subject to
conditions being complied with.
(3) In subsection (2) --
"close of business" means the close of business of the
10 Government party as specified in accordance with
section 4.11(2)(c).
4.6. Other statutory requirements not affected
Nothing in section 3.7 or 4.5, or in an agreement, determination
or declaration under this Part, authorizes the Government party
15 to do a Part 4 act without complying with any requirements of
another written law that apply to the doing of the act.
Division 3 -- Notices and objections
4.7. Proponent where act relates to mining
Where the Part 4 act, if done, would --
20 (a) create or vary a right to mine; or
(b) renew, re-grant, re-make or extend the term of an
instrument creating a right to mine,
the proponent for the purposes of this Part is the person who
under the relevant written law has applied for the act to be done.
page 36
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Notices and objections Division 3
s. 4.8
4.8. Identification of proponents in other cases
(1) This section applies where the Part 4 act is not covered by
section 4.7.
(2) The Government party is to determine the person or persons
5 (if any) who, because of an application, request or submission
made by the person or persons for the act to be done, are to be
treated as the proponent or proponents in relation to the act for
the purposes of this Part.
(3) The Government party may amend a determination under
10 subsection (2).
(4) The Government party must give notice in writing to each
proponent of --
(a) a determination under subsection (2); and
(b) any amendment of a determination,
15 relating to that proponent.
(5) If there is any other negotiation party in relation to the act at the
time when a notice is given under subsection (4) the
Government party must give the copy of the notice to each other
negotiation party.
20 4.9. Closing date for objections
(1) The Government party is to fix, for every Part 4 act, a closing
date for the lodgment of objections to the doing of the act.
(2) The Government party may fix a later closing date for the
lodgment of objections to the doing of a Part 4 act if the
25 Government party is satisfied that it has not been reasonably
practicable for section 4.11(1) to be complied with in respect of
the act.
page 37
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 3 Notices and objections
s. 4.10
(3) If on or before the closing date for a Part 4 act a person has --
(a) filed a native title determination application under
section 61 of the NTA in relation to any part of the
relevant land; and
5 (b) within 7 days of doing so, notified the Government party
and any proponent in writing of that fact,
the closing date for the act is, by the giving of such notice,
automatically extended by one month from the date fixed under
subsection (1).
10 4.10. Notification of acts
(1) Before a Part 4 act is done, public notice of the act must be
given by advertisement --
(a) in a newspaper circulating generally throughout the
State; or
15 (b) in a newspaper that satisfies any requirements
prescribed by the regulations for the purposes of this
paragraph.
(2) Notice in writing of the act must also be given to --
(a) any registered native title body corporate in relation to
20 any of the land or waters that would be affected by the
act if it were done;
(b) any registered native title claimant in relation to any of
the land or waters that would be affected by the act if it
were done; and
25 (c) any representative body for an area that includes any of
the land or waters that would be affected by the act if it
were done.
page 38
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Notices and objections Division 3
s. 4.11
4.11. Further provision as to notices
(1) The notices required by section 4.10 in respect of a Part 4 act
must be given at least 3 months before the closing date.
(2) Every notice must show --
5 (a) the closing date fixed under section 4.9(1) or (2);
(b) the title of the Government party who will receive
objections and the address at which they may be lodged;
and
(c) the time of close of business on the closing date of that
10 Government party.
(3) The particulars referred to in subsection (2)(b) and (c) are to be
as determined by the Government party.
4.12. Notice may relate to 2 or more acts
One notice may relate to the doing of 2 or more Part 4 acts.
15 4.13. Project acts
(1) If the Government party is satisfied that 2 or more Part 4 acts
constitute or form part of a project to be carried on in a specified
area, the Government party may make a determination in
writing to that effect.
20 (2) The Government party must give a copy of the determination to
each proponent.
(3) If a notice that relates to the doing of 2 or more Part 4 acts --
(a) identifies a project for which a determination under
subsection (1) is in force and has a copy of the
25 determination attached to it; and
page 39
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 3 Notices and objections
s. 4.14
(b) states that 2 or more Part 4 acts to which the notice
relates constitute or form part of the project (whether or
not the notice separately specifies the area that each act
will affect),
5 this Part applies to all of those acts as if they were a single act.
(4) However this does not mean that conditions of the kind
mentioned in section 4.24(b)(ii), 4.31(2)(c), 4.46(1)(b),
4.54(1)(b), 4.54(2)(c) or 4.54(3)(b) must --
(a) apply to all of the project acts comprising the single act;
10 or
(b) be the same for all of the project acts to which they
apply.
4.14. Who gives notice
(1) The notices required by section 4.10 are to be given --
15 (a) by the Government party where the Part 4 act is a
compulsory acquisition that comes within
section 26(1)(c)(iii) of the NTA; or
(b) in the case of any other Part 4 act, by persons of a class
prescribed by the regulations for the purposes of this
20 paragraph.
(2) A proponent or other person who is required to give any notice
is to submit to the Government party proof of the notice having
been given.
4.15. Prescribed provisions about notice
25 (1) The regulations may make provision about the giving of notice
under this Division including how the requirement to give
notice --
page 40
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Notices and objections Division 3
s. 4.16
(a) may be satisfied either generally or in particular types of
cases; and
(b) may be satisfied in conjunction with the giving of notice
under another written law that relates to a Part 4 act.
5 (2) Regulations of the kind referred to in subsection (1)(b) may be
expressed to be made under section 8.1 and under powers
conferred by another written law.
4.16. Right to object to doing of act
(1) A person that is, in relation to any part of the relevant land --
10 (a) a registered native title body corporate; or
(b) subject to subsection (2), a registered native title
claimant,
may lodge an objection to the doing of a Part 4 act.
(2) Subsection (1)(b) does not apply if there are one or more
15 registered native title bodies corporate in relation to all of the
relevant land.
4.17. Requirements for objections
An objection must --
(a) be lodged with the Government party in accordance with
20 the requirements of the relevant notice;
(b) state the manner in which it is said that the doing of the
act would affect the objector's registered native title
rights and interests in relation to the relevant land; and
(c) comply with any other requirements of the regulations
25 as to the form or content of objections.
page 41
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 3 Notices and objections
s. 4.18
4.18. Time limit
(1) An objection to the doing of a Part 4 act cannot be lodged after
the closing date.
(2) Where, on the application of a person made before the closing
5 date, the Commission is satisfied that exceptional circumstances
so require the Commission may --
(a) fix a later closing date for the lodgement of objections to
the doing of the act; and
(b) give such directions as the Commission thinks
10 appropriate as to the giving of notice of the date so
fixed.
(3) Despite the fact that the closing date for a Part 4 act has become
a later date by operation of subsection (3) of section 4.9 --
(a) only a person referred to in that subsection may lodge an
15 objection to the doing of the act between the previous
closing date and the later closing date; and
(b) for other persons the closing date for the purposes of
subsection (1) continues to be the previous closing date.
4.19. Government party to notify the Commission of objections
20 (1) The Government party must notify --
(a) the Commission; and
(b) any proponent,
of the particulars of all objections lodged on or before the
closing date.
25 (2) Notification under subsection (1) must be given as soon as is
practicable after the closing date and in any case not later than
14 days after that date.
page 42
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Notices and objections Division 3
s. 4.20
4.20. Withdrawal of request etc. by proponent
(1) The proponent in relation to a Part 4 act may give notice in
writing to --
(a) the Commission;
5 (b) the other negotiation parties (if any); and
(c) the Government party,
that the proponent's request, application or submission for the
doing of the act is withdrawn.
(2) If there is more than one proponent a notice under
10 subsection (1) is of no effect unless it is given by all of the
proponents jointly.
(3) The giving of a notice under subsection (1) to all of the persons
referred to in that subsection brings to an end any procedures
that have begun under this Part.
15 4.21. Withdrawal of proposal by Government party
(1) The application of section 4.20 extends to cases where --
(a) section 4.7 does not apply; and
(b) a proponent has not been determined under section 4.8.
(2) In that event --
20 (a) a notice may be given by the Government party that the
act will not be done; and
(b) the provisions of section 4.20 apply with all necessary
changes.
page 43
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 4 Negotiations and agreements
s. 4.22
Division 4 -- Negotiations and agreements
4.22. Meaning of "negotiation parties"
References in this Part to negotiation parties in relation to a
Part 4 act are references to --
5 (a) each proponent under section 4.7 and each objector; or
(b) where section 4.7 does not apply --
(i) the Government party;
(ii) each objector; and
(iii) any person determined under section 4.8(2) to be
10 a proponent but only so long as the person
consents to being a negotiation party.
4.23. Delegation
(1) Where a Government party is a Minister of the Crown the
negotiation functions of the Government party under this Part
15 may be performed by any official authorized by the Government
party for that purpose.
(2) Nothing in this Part is to be read as preventing the exercise by a
Government party of a power of delegation conferred by a
written law.
20 4.24. Negotiations
The negotiation parties must negotiate in good faith with a view
to --
(a) the objections to the doing of the act being withdrawn;
or
25 (b) obtaining the agreement of the objectors to --
(i) the doing of the act; or
page 44
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Negotiations and agreements Division 4
s. 4.25
(ii) the doing of the act subject to conditions to be
complied with by any of the negotiation parties.
4.25. Involvement of Commission, including mediation
(1) If any of the negotiation parties requests the Commission to do
5 so, the Commission must mediate among the parties to assist in
obtaining their agreement.
(2) The negotiation parties must report to the Commission on
progress made in the negotiations at such time or times as the
Commission may in writing direct.
10 (3) If the Commission considers that the negotiation parties or any
of them are not making sufficient attempts to reach an
agreement the Commission is to use its best endeavours --
(a) to have the parties negotiate as required by section 4.24;
and
15 (b) to bring about --
(i) an agreement of the kind mentioned in that
section; or
(ii) the withdrawal of the objections.
4.26. Withdrawal of objection
20 (1) At any time before a determination is made under Division 5 in
relation to an objection the objector may withdraw the objection
by notice in writing given to the Commission.
(2) The Commission is to notify the negotiation parties of any such
withdrawal.
25 4.27. Agreement made by parties
If at any time before any determination is made under
Division 5 the negotiation parties make an agreement of the
page 45
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 4 Negotiations and agreements
s. 4.28
kind mentioned in section 4.24, they may give a copy of it to the
Commission.
4.28. Commission's function in respect of an agreement
(1) This section applies only if the Government party is not a
5 negotiation party.
(2) Where a copy of an agreement is given to the Commission
under section 4.27 it is to consider the agreement and either --
(a) accept the agreement if the Commission is satisfied as to
the matters set out in subsection (3); or
10 (b) decline to accept the agreement if it is not so satisfied.
(3) The matters as to which the Commission is to be satisfied are
that --
(a) the negotiation parties have made the agreement;
(b) the agreement has been properly executed; and
15 (c) no party has alleged, and proved to the Commission,
that the party did not freely and voluntarily enter into the
agreement.
(4) If the Commission accepts the agreement it is to --
(a) give notice in writing of that fact to the parties and to the
20 Government party; and
(b) give the Government party a copy of the agreement.
4.29. Effect of conditional agreement
(1) An agreement that a Part 4 act may be done subject to
conditions being complied with by the negotiation parties has
25 effect --
(a) if a copy of the agreement is given to the Commission
under section 4.27 and is accepted by the Commission
under section 4.28(2); and
page 46
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Determinations Division 5
s. 4.30
(b) if the act is done,
as if the conditions were terms of a contract among the
negotiation parties.
(2) Subsection (1) is in addition to any other effect that the
5 agreement may have apart from this section.
(3) If an objector is a registered native title claimant, any other
person included in the native title claim group concerned is
taken to be a negotiation party for the purposes only of this
section.
10 Division 5 -- Determinations
Subdivision 1 -- Ministerial determination where Commission
determination unreasonably delayed
4.30. Responsible Minister may give Commission notice as to
urgency
15 (1) At any time later than 4 months after the Commission has given
a notice under section 4.41 in respect of a Part 4 act and before
either --
(a) the negotiation parties have --
(i) made an agreement of the kind mentioned in
20 section 4.24; and
(ii) given it to the Commission under section 4.27;
or
(b) the Commission has made a determination under
section 4.46,
25 the responsible Minister may give a written notice to the
Commission requesting it to make such a determination within
the period specified in the notice.
page 47
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 5 Determinations
s. 4.31
(2) The period must end at a time later than 6 months after the
notice under section 4.41 was given.
4.31. Responsible Minister may make determination
(1) The responsible Minister may, subject to section 4.32, make a
5 determination in respect of a Part 4 act if --
(a) the Commission has not made a determination in respect
of the act within the period specified in a notice under
section 4.30;
(b) all objections to the doing of the act lodged under
10 section 4.16 have not been --
(i) withdrawn under section 4.26; or
(ii) dismissed under section 4.43;
(c) no agreement of the kind mentioned in section 4.24 has
been --
15 (i) made in relation to the act;
(ii) given to the Commission under section 4.27; and
(iii) accepted by the Commission under
section 4.28(2);
and
20 (d) the responsible Minister has complied with the
requirements of sections 4.33, 4.34 and 4.35.
(2) The determinations that the responsible Minister may make
are --
(a) a determination that the act may be done;
25 (b) a determination that the act must not be done; or
(c) a determination that the act may be done subject to
conditions to be complied with by any of the negotiation
parties.
page 48
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Determinations Division 5
s. 4.32
(3) A determination must be made by the responsible Minister
personally.
4.32. Grounds for making determination
(1) The responsible Minister may only make a determination under
5 section 4.31 if he or she considers that --
(a) the Commission is unlikely to make its determination
within a period that is reasonable having regard to all the
circumstances; and
(b) it is in the interests of the State to make the
10 determination at the time.
(2) Subsection (1) does not prevent the responsible Minister from
having regard to other matters in deciding whether to make a
determination.
4.33. Consultation with Commonwealth Minister
15 The responsible Minister may only make a determination of the
kind described in section 4.31(2)(a) or (c) after he or she has
consulted the Commonwealth Minister about the determination.
4.34. Notice and submissions etc.
(1) Before making a determination under section 4.31, the
20 responsible Minister must give notice in accordance with this
section.
(2) The responsible Minister must give written notice to the
Commission requiring it, by the end of the day specified in the
notice, to give to --
25 (a) the Minister; and
(b) each negotiation party,
page 49
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 5 Determinations
s. 4.34
a summary of material that has been presented to the
Commission in the course of the Commission considering
whether to make a determination under section 4.46 in respect
of the act concerned.
5 (3) The responsible Minister must give written notice to each
negotiation party that the Minister is considering making the
determination and that each negotiation party --
(a) may, by the end of the day specified in the notice, give
the Minister any submission or other material that the
10 negotiation party wants the Minister to take into account
in deciding whether to make the determination and, if
so, its terms;
(b) if the negotiation party does so, must also give each of
the other negotiation parties a copy of the submission or
15 other material; and
(c) may, within 7 days after the specified day, in response to
any submission or other material given by --
(i) any other negotiation party; or
(ii) the Commission,
20 give the Minister any further submission or other
material that the negotiation party wants the Minister to
take into account as mentioned in paragraph (a).
(4) The day specified under subsection (2) or (3) must --
(a) be the same in all of the notices given under the
25 subsections; and
(b) be a day by which, in the responsible Minister's opinion,
it is reasonable to assume that all of the notices so
given --
(i) will have been received by; or
30 (ii) will otherwise have come to the attention of,
page 50
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Determinations Division 5
s. 4.35
the persons who must be so notified.
(5) If the responsible Minister complies with this section, there is
no requirement for any person to be given any further hearing
before the responsible Minister makes the determination.
5 4.35. Material etc. taken into account
In making the determination, the responsible Minister --
(a) must take into account --
(i) any submission or material provided by any of
the negotiation parties in accordance with
10 subsection (3) of section 4.34, but only if the
negotiation party has complied with the
requirements of paragraph (b) of that subsection;
(ii) any report provided by the Commission; and
(iii) any consultations with the Commonwealth
15 Minister under section 4.33; and
(b) may, but need not, take into account any other matter or
thing.
4.36. Minister's power not limited
The fact that no submission or other material of the kind
20 mentioned in section 4.34 has been given to the Minister before
the end of the day specified in the notice does not prevent the
Minister from making the determination.
4.37. No duty to make determination
(1) The responsible Minister does not have a duty to make a
25 determination under section 4.31.
(2) This is so despite --
(a) the giving of any notice by the Minister;
page 51
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 5 Determinations
s. 4.38
(b) the giving of any submission or other material to the
Minister;
(c) any request by a negotiation party for the responsible
Minister to make the determination; and
5 (d) any other circumstance.
4.38. Conditions to have contractual effect
(1) Any provision in a determination under section 4.31 that the act
may be done subject to conditions being complied with by any
of the negotiation parties has effect, if the act is done, in
10 accordance with this section.
(2) Any such conditions have effect, in addition to the effect that
the determination has apart from this section, as if they were the
terms of a contract among the negotiation parties.
(3) If an objector is a registered native title claimant, any other
15 person included in the native title claim group concerned is
taken to be a negotiation party for the purposes only of this
section.
4.39. Copy of determination to be given
The responsible Minister must give a copy of any determination
20 under section 4.31 to the negotiation parties and the
Commission.
4.40. Copy of determination to be laid before Parliament
(1) The responsible Minister must cause a copy of a determination
under section 4.31, together with reasons for the determination,
25 to be laid before each House of Parliament.
(2) Subsection (1) is to be complied with as soon as is practicable
after the determination is made and in any case, in relation to a
page 52
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Determinations Division 5
s. 4.41
House of Parliament, within 15 sitting days of that House after
the determination is made.
Subdivision 2 -- Determination by Commission
4.41. Commission may notify intention to hear
5 (1) The Commission may give notice to the negotiation parties that
it intends to hear and determine objections to the doing of a
Part 4 act if --
(a) an agreement of the kind mentioned in section 4.24 has
not been --
10 (i) made by the negotiation parties;
(ii) given to the Commission under section 4.27; and
(iii) accepted by the Commission under
section 4.28(2);
or
15 (b) all objections to the doing of the act have not been
withdrawn.
(2) A notice under subsection (1) in respect of a Part 4 act may be
given by the Commission --
(a) of its own motion, but only after the expiry of the
20 negotiation period; or
(b) on the application of a negotiation party made after the
expiry of that period.
(3) The Commission must grant an application made under
subsection (2)(b) if --
25 (a) a determination has not been made under section 4.31;
and
(b) the application --
(i) complies with section 4.59; and
page 53
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 5 Determinations
s. 4.42
(ii) is accompanied by the things required by
section 4.60.
(4) Without limiting section 7.23 and whether or not section 4.13
applies, a notice under subsection (1) may relate to more than
5 one act and the objections to the doing of the act.
(5) In this section --
"negotiation period" means the period beginning on the
closing date and ending 4 months after that date.
4.42. Negotiations may continue
10 Where the Commission --
(a) has given notice under section 4.41; but
(b) has not made a determination,
in respect of a Part 4 act, the negotiation parties may continue to
negotiate with a view to --
15 (c) bringing about an agreement of the kind mentioned in
section 4.24; or
(d) the withdrawal of the objections.
4.43. Objections may be dismissed
The Commission must dismiss an objection if --
20 (a) it is not made by a registered native title body corporate
or a registered native title claimant as required by
section 4.16; or
(b) the rights and interests claimed to be affected by the
doing of the act are not registered native title rights and
25 interests of the objector.
page 54
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Determinations Division 5
s. 4.44
4.44. Time for making determination
(1) The Commission must take all reasonable steps to make a
determination under section 4.46 in respect of a Part 4 act
within the period of 6 months ("the allowed period") starting
5 when a notice under section 4.41 is given in respect of the act.
(2) If it appears to the Commission that it will not make a
determination within the allowed period, the Commission may,
before the end of the period, ask the responsible Minister to
extend the period, and that Minister may comply with the
10 request.
(3) An extended period may be further extended under
subsection (2).
(4) The Commission must not make a determination after the end of
the allowed period or any extended period.
15 (5) Nothing in subsection (2) affects the operation of Subdivision 1.
4.45. No determination if agreement etc.
The Commission must not make a determination in respect of a
Part 4 act if --
(a) all of the objections to the doing of the act have been
20 withdrawn;
(b) an agreement of the kind mentioned in section 4.24 has
been --
(i) made by the negotiation parties;
(ii) given to the Commission under section 4.27; and
25 (iii) accepted by the Commission under
section 4.28(2);
or
(c) a determination has been made under section 4.31.
page 55
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 5 Determinations
s. 4.46
4.46. Making of determination
(1) Subject to section 4.45, the Commission must make one of the
following determinations --
(a) a determination that the act may be done;
5 (b) a determination that the act may be done subject to
conditions specified in the determination to be complied
with by any of the negotiation parties;
(c) a determination that the act must not be done.
(2) The Commission may specify conditions under
10 subsection (1)(b) only if they relate to the doing of the act as it
affects registered native title rights and interests in relation to
the relevant land.
(3) The Commission must not determine a condition under
subsection (1)(b) that has the effect that an objector is to be
15 entitled to payments worked out by reference to --
(a) the amount of profits made;
(b) any income derived; or
(c) any things produced,
by any other negotiation party as a result of doing anything in
20 relation to the relevant land after the act is done.
4.47. Criteria for making determinations
(1) In making its determination in respect of a Part 4 act, the
Commission must take into account the following --
(a) the effect of the act on --
25 (i) the enjoyment by the objectors of their registered
native title rights and interests;
(ii) the way of life, culture and traditions of any of
the objectors;
page 56
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Determinations Division 5
s. 4.47
(iii) the development of the social, cultural and
economic structures of any of the objectors;
(iv) the freedom of access by any of the objectors to
the relevant land and their freedom to carry out
5 rites, ceremonies or other activities of cultural
significance on the land or waters in accordance
with their traditions; and
(v) any area or site on the relevant land of particular
significance to the objectors in accordance with
10 their traditions;
(b) the interests, proposals, opinions or wishes of the
objectors in relation to the management, use or control
of land or waters in relation to which there are registered
native title rights and interests of the objectors that will
15 be affected by the act;
(c) the economic or other significance of the act to --
(i) Australia;
(ii) this State;
(iii) the area in which the relevant land is located; and
20 (iv) Aboriginal peoples who live in that area;
(d) any public interest in the doing of the act; and
(e) any other matter that the Commission considers
relevant.
(2) While taking into account the effect of a Part 4 act as mentioned
25 in subsection (1)(a), the Commission must also take into
account the nature and extent of --
(a) existing rights and interests that are not native title rights
and interests, in relation to the relevant land; and
(b) existing use of the relevant land by persons other than
30 the objectors.
page 57
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 5 Determinations
s. 4.48
(3) Taking into account the effect of a Part 4 act on areas or sites
mentioned in subsection (1)(a)(v) does not affect the operation
of any law of the Commonwealth or the State for the
preservation or protection of those areas or sites.
5 4.48. Issues on which parties agree
(1) Before making its determination, the Commission must
ascertain whether the negotiation parties have an agreed
position on any issues relevant to its determination.
(2) If there is any such issue, and all of the negotiation parties
10 consent, the Commission in making its determination --
(a) must take that agreed position into account; and
(b) need not take into account the matters mentioned in
section 4.47 to the extent that the matters relate to that
issue.
15 4.49. Determination may provide for issues to be resolved later
(1) A determination may, with the consent of the negotiation
parties, provide that a particular matter that --
(a) is not reasonably capable of being determined when the
determination is made; and
20 (b) is not directly relevant to the doing of the act,
is to be the subject of further negotiations or to be determined in
a specified manner.
(2) If --
(a) the manner specified is arbitration by some person or
25 body other than the Commission; and
page 58
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Determinations Division 5
s. 4.50
(b) the negotiation parties do not agree about the manner in
which the arbitration is to take place,
the Commission must determine the matter at an appropriate
time.
5 4.50. No reopening of certain issues previously decided
(1) If --
(a) the Commission is making a determination in respect of
a Part 4 act consisting of the creation of a right to mine
in relation to an area; and
10 (b) an agreement or a determination involving the same
negotiation parties was previously made in respect of a
future act consisting of the creation of a right to mine in
relation to the same area; and
(c) an issue was decided in the agreement or during the
15 proceedings before the Commission or an arbitral body,
the negotiation parties must not, without leave of the
Commission, seek to vary the decision on the issue.
(2) In subsection (1) --
"agreement" means an agreement of the kind mentioned in
20 section 4.24 that is given to the Commission under
section 4.27;
"determination" means a determination by --
(a) the Commission under this Part; or
(b) an arbitral body under the relevant provisions of the
25 NTA;
page 59
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 6 Overruling of Commission's determination
s. 4.51
"relevant provisions of the NTA" means the following
provisions of Division 3 of Part 2 of the NTA --
(a) Subdivision B of that Division as in force
immediately before the commencement of item 9 of
5 Schedule 1 to the Native Title Amendment Act 1998
of the Commonwealth; and
(b) Subdivision P of that Division.
4.51. Copy of determination to be given
The Commission must give a copy of any determination under
10 section 4.46 to the negotiation parties and the responsible
Minister.
4.52. Effect of conditional determination
(1) A determination by the Commission that a Part 4 act may be
done subject to conditions being complied with by the parties
15 has effect, if the act is done, as if the conditions were terms of a
contract among the negotiation parties.
(2) Subsection (1) is in addition to the effect that the determination
has apart from this section.
(3) If an objector is a registered native title claimant, any other
20 person included in the native title claim group concerned is
taken to be a negotiation party for the purposes only of this
section.
Division 6 -- Overruling of Commission's determination
4.53. Responsible Minister may overrule
25 (1) Subject to section 4.55, the responsible Minister may, by
writing given to the Commission, make a declaration in
accordance with section 4.54.
page 60
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Overruling of Commission's determination Division 6
s. 4.54
(2) A declaration cannot be made by the responsible Minister in
respect of a determination after 2 months have expired since the
determination was made.
(3) The Commission must give a copy of the declaration to the
5 negotiation parties concerned.
4.54. Declarations that responsible Minister may make
(1) In the case of a determination under section 4.46(1)(a), the
responsible Minister may make a declaration that the
determination is overruled and a declaration either --
10 (a) that the act to which it relates must not be done; or
(b) that the act to which it relates may be done subject to
specified conditions to be complied with by any of the
negotiation parties.
(2) In the case of a determination under section 4.46(1)(b), the
15 responsible Minister may make a declaration that the
determination is overruled and a declaration --
(a) that the act to which it relates must not be done;
(b) that the act to which it relates may be done; or
(c) that the act to which it relates may be done subject to
20 specified conditions to be complied with by any of the
negotiation parties.
(3) In the case of a determination under section 4.46(1)(c), the
responsible Minister may make a declaration that the
determination is overruled and a declaration either --
25 (a) that the act to which it relates may be done; or
(b) that the act to which it relates may be done subject to
specified conditions to be complied with by any of the
negotiation parties.
page 61
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 6 Overruling of Commission's determination
s. 4.55
(4) The responsible Minister may only specify conditions under this
section that relate to the doing of the act as it affects registered
native title rights and interests in relation to the relevant land.
(5) In this section --
5 "specified" means specified in the declaration.
4.55. Grounds on which declaration may be made
The responsible Minister may only make a declaration under
section 4.53 on the grounds that it is in the interests of the State,
or in the national interest, to do so.
10 4.56. Conditions in declaration
(1) Any provision in a declaration by the responsible Minister under
section 4.53 that a Part 4 act may be done subject to conditions
being complied with by any of the negotiation parties has effect,
if the act is done, in accordance with subsection (2).
15 (2) Any such conditions have effect, in addition to the effect that
the declaration has apart from this section, as if they were the
terms of a contract among the negotiation parties.
(3) If an objector is a registered native title claimant, any other
person included in the native title claim group concerned is
20 taken to be a negotiation party for the purposes only of this
section.
4.57. Responsible Minister may declare intention not to overrule
(1) The responsible Minister may by instrument given to the
Commission declare that he or she does not intend to exercise
25 any power conferred by section 4.53 in respect of a particular
determination.
page 62
Native Title (State Provisions) Bill 1998
Right to negotiate procedures for areas not covered by Part 3 Part 4
Applications Division 7
s. 4.58
(2) If an instrument is given to the Commission under
subsection (1) the responsible Minister --
(a) cannot revoke the instrument; and
(b) cannot exercise any power conferred by section 4.53 in
5 respect of the determination in question.
(3) The Commission is to notify the negotiation parties of the
giving of an instrument to it under subsection (1).
Division 7 -- Applications
4.58. Definition
10 In this Division --
"application" means an application under section 4.41(2)(b).
4.59. Form and contents of application
An application must --
(a) be made in accordance with the regulations; and
15 (b) comply with the requirements of the regulations as to
the form or content of applications.
4.60. Material and fees to accompany applications
An application must be accompanied by any prescribed
documents and any prescribed fee.
20 4.61. Application fee may be waived
The Executive Director may waive payment of whole or part of
a fee payable under section 4.60 where --
(a) having regard to the income, day to day living expenses,
liabilities and assets of the person liable to pay the fee,
25 in the Executive Director's opinion, payment of the fee
would cause financial hardship to the person; or
page 63
Native Title (State Provisions) Bill 1998
Part 4 Right to negotiate procedures for areas not covered by Part 3
Division 7 Applications
s. 4.61
(b) for any other reason the Executive Director considers
appropriate to do so.
page 64
Native Title (State Provisions) Bill 1998
Consultation procedures for acts to which section 24MD(6B) Part 5
of the NTA applies
Preliminary Division 1
s. 5.1
Part 5 -- Consultation procedures for acts to which
section 24MD(6B) of the NTA applies
Division 1 -- Preliminary
5.1. Purpose of this Part
5 The provisions of this Part are enacted --
(a) to supplement, so far as the legislative power of the
Parliament permits, the provisions of subsection (6B) of
section 24MD of the NTA; and
(b) to meet the State's obligation under paragraph (f) of that
10 subsection to ensure that objections to which that
subsection applies are heard by an independent person
or body.
5.2. Acts to which this Part applies
This Part applies to a future act ("a Part 5 act") done by the
15 State that consists of --
(a) a permissible lease etc. renewal that comes within
section 24ID(4)(a) and (b) of the NTA;
(b) a compulsory acquisition to which section 24MD(6B)(a)
of the NTA applies; and
20 (c) the creation or variation of a right to mine that comes
within section 24MD(6B)(b) of the NTA.
5.3. Requirements to be satisfied before a Part 5 act is done
(1) Before a Part 5 act is done the requirements of one of the
paragraphs of subsection (2) must be satisfied in respect of the
25 act.
page 65
Native Title (State Provisions) Bill 1998
Part 5 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 1 Preliminary
s. 5.3
(2) The requirements are --
(a) no objection is lodged under section 5.11 before the
close of business on the closing date;
(b) after the closing date, but immediately before the act is
5 done, there is no native title party in relation to any part
of the relevant land;
(c) all objections lodged under section 5.11 before the close
of business on the closing date are --
(i) withdrawn under section 5.21; or
10 (ii) dismissed under section 5.25;
(d) an agreement of the kind described in section 5.22 is
made by the consultation parties and given to the
Commission under that section;
(e) a recommendation is made that the act be done, or be
15 done subject to conditions being complied with, and the
recommendation --
(i) has not been overruled under section 5.34; and
(ii) is no longer capable of being overruled --
(I) because of section 5.34(2); or
20 (II) because the responsible Minister has
given an instrument to the Commission
under section 5.39;
(f) a recommendation that the act not be done is overruled
under section 5.34; or
25 (g) a recommendation --
(i) that the act be done; or
(ii) that the act be done subject to conditions being
complied with,
page 66
Native Title (State Provisions) Bill 1998
Consultation procedures for acts to which section 24MD(6B) Part 5
of the NTA applies
Notices and objections Division 2
s. 5.4
is overruled under section 5.34 and a determination is
made under that section that the act may be done subject
to conditions being complied with.
(3) In subsection (2) --
5 "close of business" means the close of business of the
Government party as specified in accordance with
section 5.9(2)(c).
5.4. Other statutory requirements not affected
Nothing in section 5.3, or in an agreement, recommendation or
10 determination under this Part, authorizes the Government party
to do a Part 5 act without complying with any requirements of
another written law that apply to the doing of the act.
Division 2 -- Notices and objections
5.5. Proponent where act relates to mining
15 Where the Part 5 act, if done, would create or vary a right to
mine, the proponent for the purposes of this Part is the person
who under the relevant written law is the applicant for the right
to mine or the variation.
5.6. Identification of proponents in other cases
20 (1) This section applies where the Part 5 act is not covered by
section 5.5.
(2) The Government party is to determine the person or persons (if
any) who, because of an application, request or submission
made by the person or persons for the act to be done, are to be
25 treated as the proponent or proponents in relation to the act for
the purposes of this Part.
page 67
Native Title (State Provisions) Bill 1998
Part 5 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 2 Notices and objections
s. 5.7
(3) The Government party may amend a determination under
subsection (2).
(4) The Government party must give notice in writing to each
proponent of --
5 (a) a determination under subsection (2); and
(b) any amendment of a determination,
relating to that proponent.
(5) If there is any other consultation party in relation to the act at
the time when a notice is given under subsection (4) the
10 Government party must give a copy of the notice to each other
consultation party.
5.7. Closing date for objections
(1) The Government party is to fix, for every Part 5 act, a closing
date for the lodgment of objections to the doing of the act.
15 (2) The Government party may fix a later closing date for the
lodgment of objections to the doing of a Part 5 act if the
Government party is satisfied that it has not been reasonably
practicable for section 5.9(1) to be complied with in respect of
the act.
20 5.8. Notification of acts by Government party
Before a Part 5 act is done, the Government party must give
notice in writing of the act to --
(a) any registered native title body corporate in relation to
any of the relevant land;
25 (b) any registered native title claimant in relation to any of
the relevant land; and
(c) any representative body for an area that includes any of
the relevant land.
page 68
Native Title (State Provisions) Bill 1998
Consultation procedures for acts to which section 24MD(6B) Part 5
of the NTA applies
Notices and objections Division 2
s. 5.9
5.9. Further provision as to notices
(1) The notices required by section 5.8 must be given at least
2 months before the closing date.
(2) Every notice must show --
5 (a) the closing date;
(b) the title of the Government party who will receive
objections and the address at which they may be lodged;
and
(c) the time of close of business on the closing date of that
10 Government party.
(3) The particulars referred to in subsection (2)(b) and (c) are to be
as determined by the Government party.
5.10. Prescribed provisions about notice
(1) The regulations may make provision about the giving of notice
15 under this Division including how the requirement to give
notice --
(a) may be satisfied either generally or in particular types of
cases; and
(b) may be satisfied in conjunction with the giving of notice
20 under another written law that relates to a Part 5 act.
(2) Regulations of the kind referred to in subsection (1)(b) may be
expressed to be made under section 8.1 and under powers
conferred by another written law.
5.11. Right to object to doing of act
25 (1) A person that is, in relation to any part of the relevant land --
(a) a registered native title body corporate; or
page 69
Native Title (State Provisions) Bill 1998
Part 5 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 2 Notices and objections
s. 5.12
(b) subject to subsection (3), a registered native title
claimant,
may lodge an objection to the doing of a Part 5 act.
(2) An objection may be lodged only on the ground that the doing
5 of the act in relation to the relevant land would affect the
person's registered native title rights and interests in relation to
that land.
(3) Subsection (1)(b) does not apply if there are one or more
registered native title bodies corporate in relation to all of the
10 relevant land.
5.12. Requirements for objections
An objection must --
(a) be lodged with the Government party in accordance with
the requirements of the relevant notice;
15 (b) state the manner in which it is said that the doing of the
act would affect the objector's registered native title
rights and interests in relation to the relevant land; and
(c) comply with any other requirements of the regulations
as to the form or content of objections.
20 5.13. Time limit
(1) An objection to the doing of a Part 5 act cannot be lodged after
the closing date.
(2) Where, on the application of a person made before the closing
date, the Commission is satisfied that exceptional circumstances
25 so require the Commission may --
(a) fix a later closing date for the lodgement of objections to
the doing of the act; and
page 70
Native Title (State Provisions) Bill 1998
Consultation procedures for acts to which section 24MD(6B) Part 5
of the NTA applies
Notices and objections Division 2
s. 5.14
(b) give such directions as the Commission thinks
appropriate as to the giving of notice of the date so
fixed.
5.14. Government party to notify the Commission of objections
5 (1) The Government party must notify --
(a) the Commission; and
(b) any proponent,
of the particulars of all objections to the doing of a Part 5 act
lodged on or before the closing date.
10 (2) Notification under subsection (1) must be given as soon as is
practicable after the closing date and in any case not later than
14 days after that date.
5.15. Withdrawal of request etc. by proponent
(1) The proponent in relation to a Part 5 act may give notice in
15 writing to --
(a) the Commission;
(b) the other consultation parties (if any); and
(c) the Government party,
that the proponent's application, request or submission for the
20 doing of the act is withdrawn.
(2) If there is more than one proponent a notice under
subsection (1) is of no effect unless it is given by all of the
proponents jointly.
(3) The giving of a notice under subsection (1) to all of the persons
25 referred to in that subsection brings to an end any procedures
that have begun under this Part.
page 71
Native Title (State Provisions) Bill 1998
Part 5 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 3 Consultation and agreements
s. 5.16
5.16. Withdrawal of proposal by Government party
(1) The application of section 5.15 extends to cases where --
(a) section 5.5 does not apply; and
(b) a proponent has not been determined under
5 section 5.6(2).
(2) In that event --
(a) a notice may be given by the Government party that the
act will not be done; and
(b) the provisions of section 5.15 apply with all necessary
10 changes.
Division 3 -- Consultation and agreements
5.17. Meaning of "consultation parties"
References in this Part to consultation parties in relation to a
Part 5 act are references to --
15 (a) each proponent under section 5.5 and each objector; or
(b) where section 5.5 does not apply --
(i) the Government party;
(ii) each objector; and
(iii) any person determined under section 5.6(2) to be
20 a proponent but only so long as the person
consents to being a consultation party.
5.18. Delegation
(1) Where a Government party is a Minister of the Crown the
consultation functions of the Government party under this Part
25 may be performed by any official authorized by the Government
party for that purpose.
page 72
Native Title (State Provisions) Bill 1998
Consultation procedures for acts to which section 24MD(6B) Part 5
of the NTA applies
Consultation and agreements Division 3
s. 5.19
(2) Nothing in this Part is to be read as preventing the exercise by a
Government party of a power of delegation conferred by a
written law.
5.19. Consultation
5 The consultation parties must consult with each other about
ways of minimizing the impact of the act on registered native
title rights and interests in relation to the relevant land,
including about --
(a) any access to the land or waters; or
10 (b) the way in which any thing authorized by the act may be
done.
5.20. Involvement of Commission, including mediation
(1) If any of the consultation parties requests the Commission to do
so, the Commission must mediate among the parties to assist in
15 resolving the differences between them on the relevant matters
mentioned in section 5.19.
(2) The consultation parties must report to the Commission on
progress made in the consultations at such time or times as the
Commission may in writing direct.
20 (3) If the Commission considers that the consultation parties or any
of them are not making sufficient attempts to resolve their
differences the Commission is to use its best endeavours --
(a) to have the parties consult together as required by
section 5.19; and
25 (b) to bring about --
(i) a resolution of the differences between them on
the relevant matters mentioned in section 5.19; or
(ii) the withdrawal of the objections.
page 73
Native Title (State Provisions) Bill 1998
Part 5 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 4 Recommendations of the Commission
s. 5.21
5.21. Withdrawal of objection
(1) At any time before a recommendation is made under Division 4
in relation to an objection the objector may withdraw the
objection by notice in writing given to the Commission.
5 (2) The Commission is to notify the consultation parties of any such
withdrawal.
5.22. Agreement made by parties
If at any time before a recommendation is made under
Division 4 the consultation parties make an agreement that
10 resolves the issues on which the objections were based, they
may give a copy of it to the Commission.
Division 4 -- Recommendations of the Commission
5.23. Commission may notify intention to hear
(1) The Commission may give notice to the consultation parties that
15 it intends to hear and determine objections to the doing of a
Part 5 act if --
(a) all of the objections have not been withdrawn; or
(b) an agreement of the kind described in section 5.22 has
not been made between the consultation parties and
20 given to the Commission under that section.
(2) A notice under subsection (1) in respect of a Part 5 act may be
given by the Commission --
(a) of its own motion, but only after the consultation period
for that act has expired; or
25 (b) subject to subsection (3), on the application of a
consultation party.
page 74
Native Title (State Provisions) Bill 1998
Consultation procedures for acts to which section 24MD(6B) Part 5
of the NTA applies
Recommendations of the Commission Division 4
s. 5.24
(3) The Commission must not grant an application made under
subsection (2)(b) in respect of a Part 5 act before the expiry of
the consultation period for the act unless it is satisfied --
(a) that the applicant has made reasonable endeavours to
5 resolve the issues on which the objections are based; and
(b) that further consultation is not likely to serve any
purpose in that respect.
(4) Subject to subsection (3), the Commission must grant an
application made under subsection (2)(b) if the application
10 complies with section 5.41 and is accompanied by the things
required by section 5.42.
(5) Without limiting section 7.23, a notice under subsection (1) may
relate to more than one act and the objections to the doing of the
act.
15 (6) In this section --
"consultation period" means the period beginning on the
closing date and ending 4 months after that date.
5.24. Consultations may continue
Where the Commission --
20 (a) has given notice under section 5.23; but
(b) has not made a recommendation,
in respect of a Part 5 act, the consultation parties may continue
to consult together with a view to bringing about --
(c) a resolution of the issues on which the objections are
25 based; and
(d) the withdrawal of the objections.
page 75
Native Title (State Provisions) Bill 1998
Part 5 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 4 Recommendations of the Commission
s. 5.25
5.25. Objections may be dismissed
The Commission must dismiss an objection if --
(a) it is not made by a registered native title body corporate
or a registered native title claimant as required by
5 section 5.11(1); or
(b) the rights and interests claimed to be affected by the
doing of the act are not registered native title rights and
interests of the objector.
5.26. Time for making recommendation
10 (1) Subject to section 5.27, the Commission must take all
reasonable steps to make a recommendation in respect of a
Part 5 act within the period of 4 months ("the allowed period")
starting when a notice under section 5.23 is given in respect of
the act.
15 (2) If it appears to the Commission that it will not make a
recommendation within the allowed period, the Commission
may before the end of the period ask the responsible Minister to
extend the period, and that Minister may comply with the
request.
20 (3) An extended period may be further extended under
subsection (2).
5.27. No recommendation if agreement etc.
The Commission must not make a recommendation in respect of
a Part 5 act if --
25 (a) all of the objections to the doing of the act have been
withdrawn; or
(b) an agreement of the kind described in section 5.22 has
been made between the consultation parties and given to
the Commission under that section.
page 76
Native Title (State Provisions) Bill 1998
Consultation procedures for acts to which section 24MD(6B) Part 5
of the NTA applies
Recommendations of the Commission Division 4
s. 5.28
5.28. Making of recommendation
(1) Except where section 5.27 applies, the Commission must make
one of the following recommendations --
(a) that the act be done;
5 (b) that the act be done subject to specified conditions being
complied with by any of the consultation parties;
(c) that the act not be done.
(2) The Commission may specify conditions under
subsection (1)(b) only if they relate to the doing of the act as it
10 affects registered native title rights and interests in relation to
the relevant land.
5.29. Criteria for making recommendations
(1) In making its recommendation in respect of any Part 5 act, the
Commission must --
15 (a) take into account the impact of the act on registered
native title rights and interests of the objectors in
relation to the relevant land; and
(b) unless it recommends that the act not be done, consider
ways in which that impact can be minimized.
20 (2) In addition, in making its recommendation in respect of a Part 5
act that is not a compulsory acquisition that comes within
section 24MD(6B)(a) of the NTA, the Commission must
consider questions of --
(a) access to the relevant land; and
25 (b) the way in which any thing authorized by the act may be
done.
(3) The Commission must also take into account the nature and
extent of --
page 77
Native Title (State Provisions) Bill 1998
Part 5 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 4 Recommendations of the Commission
s. 5.30
(a) existing rights and interests that are not native title rights
and interests, in relation to the relevant land; and
(b) existing use of the relevant land by persons other than
the objectors.
5 5.30. Issues on which parties agree
(1) Before making its recommendation, the Commission must
ascertain whether the consultation parties have an agreed
position on any issues relevant to its recommendation.
(2) If there is any such issue, and all of the consultation parties
10 consent, the Commission in making its recommendation --
(a) must take that agreed position into account; and
(b) need not take into account the matters mentioned in
section 5.29, to the extent that the matters relate to that
issue.
15 5.31. Copy of recommendation to be given
The Commission must give a copy of any recommendation
under section 5.28 to the consultation parties and the
responsible Minister.
5.32. Effect of recommendation
20 A recommendation must be complied with by the Government
party unless it is overruled by a determination of the responsible
Minister under section 5.34.
5.33. Effect of recommendation that specifies conditions
(1) A recommendation by the Commission that a Part 5 act may be
25 done subject to conditions being complied with by the parties
has effect, if the act is done, as if the conditions were terms of a
contract among the consultation parties.
page 78
Native Title (State Provisions) Bill 1998
Consultation procedures for acts to which section 24MD(6B) Part 5
of the NTA applies
Overruling of recommendations Division 5
s. 5.34
(2) Subsection (1) is in addition to the effect that the
recommendation has under section 5.32.
(3) If an objector is a registered native title claimant, any other
person included in the native title claim group concerned is
5 taken to be a consultation party for the purposes only of this
section.
Division 5 -- Overruling of recommendations
5.34. Responsible Minister may overrule a recommendation
(1) Subject to sections 5.36 and 5.37, the responsible Minister may,
10 by writing given to the Commission, make a determination in
accordance with section 5.35.
(2) A determination cannot be made by the responsible Minister in
respect of a recommendation after 2 months have expired since
the recommendation was made.
15 (3) The Commission must give a copy of the determination to the
consultation parties concerned.
5.35. Determinations that responsible Minister may make
(1) In the case of a recommendation under section 5.28(1)(a), the
responsible Minister may make a determination that the
20 recommendation is overruled and either --
(a) that the act to which it relates must not be done; or
(b) that the act to which it relates may be done subject to
specified conditions to be complied with by any of the
consultation parties.
25 (2) In the case of a recommendation under section 5.28(1)(b), the
responsible Minister may make a determination that the
recommendation is overruled and --
(a) that the act to which it relates must not be done;
page 79
Native Title (State Provisions) Bill 1998
Part 5 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 5 Overruling of recommendations
s. 5.36
(b) that the act to which it relates may be done; or
(c) that the act to which it relates may be done subject to
specified conditions to be complied with by any of the
consultation parties.
5 (3) In the case of a recommendation under section 5.28(1)(c), the
responsible Minister may make a determination that the
recommendation is overruled and either --
(a) that the act to which it relates may be done; or
(b) that the act to which it relates may be done subject to
10 specified conditions to be complied with by any of the
consultation parties.
(4) The responsible Minister may only specify conditions under this
section that relate to the doing of the act as it affects registered
native title rights and interests in relation to the relevant land.
15 (5) In this section --
"specified" means specified in the determination.
5.36. Consultation before making of determination
(1) This section applies if the effect of the responsible Minister's
determination under section 5.34 is that the act may be done --
20 (a) unconditionally;
(b) subject to conditions to be complied with; or
(c) subject to conditions to be complied with that are
different in any respect from the conditions specified in
the recommendation that is overruled.
25 (2) If this section applies, the responsible Minister may only make a
determination under section 5.34 after he or she has --
page 80
Native Title (State Provisions) Bill 1998
Consultation procedures for acts to which section 24MD(6B) Part 5
of the NTA applies
Overruling of recommendations Division 5
s. 5.37
(a) consulted the State Minister principally responsible for
indigenous affairs about the determination in question;
and
(b) has taken into account any recommendation or advice
5 made or given by that Minister.
5.37. Ground on which determination may be made
(1) The responsible Minister may only make a determination under
section 5.34 on the ground that it is in the interests of the State
to do so.
10 (2) In subsection (1) --
"in the interests of the State" includes --
(a) for the social or economic benefit of the State
(including of Aboriginal peoples); and
(b) in the interests of the relevant region or locality in the
15 State.
5.38. Conditions in determination
(1) Any provision in a determination by the responsible Minister
under section 5.34 that a Part 5 act may be done subject to
conditions being complied with by any of the consultation
20 parties has effect, if the act is done, in accordance with
subsection (2).
(2) Any such conditions have effect, in addition to the effect of the
determination apart from this section, as if they were the terms
of a contract among the consultation parties.
25 (3) If an objector is a registered native title claimant, any other
person included in the native title claim group concerned is
taken to be a consultation party for the purposes only of this
section.
page 81
Native Title (State Provisions) Bill 1998
Part 5 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 6 Applications
s. 5.39
5.39. Responsible Minister may declare intention not to overrule
(1) The responsible Minister may by instrument given to the
Commission declare that he or she does not intend to exercise
any power conferred by section 5.34 in respect of a particular
5 recommendation.
(2) If an instrument is given to the Commission under
subsection (1) the responsible Minister --
(a) cannot revoke the instrument; and
(b) cannot exercise any power conferred by section 5.34 in
10 respect of the recommendation concerned.
(3) The Commission is to notify the consultation parties of the
giving of an instrument to it under subsection (1).
Division 6 -- Applications
5.40. Definition
15 In this Division --
"application" means an application under section 5.23(2)(b).
5.41. Form and contents of application
An application must --
(a) be made in accordance with the regulations; and
20 (b) comply with the requirements of the regulations as to
the form or content of applications.
5.42. Material and fees to accompany applications
An application must be accompanied by any prescribed
documents and any prescribed fee.
page 82
Native Title (State Provisions) Bill 1998
Provisions relating to compensation Part 6
Determination of compensation Division 1
s. 6.1
Part 6 -- Provisions relating to compensation
Division 1 -- Determination of compensation
6.1. Commission to determine compensation for certain acts
(1) This section applies where --
5 (a) a Part 3 act, a Part 4 act or a Part 5 act is done; and
(b) the native title holders in relation to the relevant land are
not entitled to compensation for the act under another
written law.
(2) The native title holders are entitled to compensation under this
10 section for any loss, diminution or impairment of, or other effect
of the act on, their native title rights and interests.
(3) The principles set out in Division 2 apply to a determination of
compensation under this section.
(4) The Commission, on application made as provided by the
15 regulations --
(a) is to determine the amount of any such compensation
and the native title holders entitled to receive it; and
(b) may make such orders as it considers appropriate,
including orders as to costs and other ancillary matters.
20 (5) Such compensation is recoverable --
(a) from any person who is made liable for the
compensation by a written law; or
(b) otherwise, from the Crown.
6.2. Enforcement of order for compensation
25 (1) Where compensation is recoverable by a native title holder by
virtue of an order under section 6.1, the Chief Commissioner, on
page 83
Native Title (State Provisions) Bill 1998
Part 6 Provisions relating to compensation
Division 2 Principles to be applied in the determination of compensation
s. 6.3
application by the native title holder, is to issue a certified copy
of the order.
(2) If the certified copy is lodged with the clerk or registrar of a
court in accordance with the rules of court, the clerk or registrar
5 is to register the order.
(3) The order when registered may be enforced as if it were an
order made by the court.
(4) In this section --
"court" means --
10 (a) a Local Court, if the order would be within the
monetary limit of the jurisdiction of a Local Court in
respect of the recovery of debts;
(b) if paragraph (a) does not apply, the District Court, if
the order would be within the monetary limit of the
15 jurisdiction of that Court in respect of the recovery of
debts; or
(c) otherwise, the Supreme Court.
Division 2 -- Principles to be applied in the determination of
compensation
20 6.3. No multiple compensation for essentially same act
Compensation under this Part --
(a) is only payable once for acts that are essentially the
same; and
(b) is to be determined taking into account any
25 compensation awarded under another written law, or the
NTA, for essentially the same act.
page 84
Native Title (State Provisions) Bill 1998
Provisions relating to compensation Part 6
Principles to be applied in the determination of compensation Division 2
s. 6.4
6.4. Compensation where similar compensable interest test
satisfied
If the similar compensable interest test under section 240 of the
NTA is satisfied in relation to an act, the Commission in
5 determining compensation for the act under this Part must,
subject to sections 6.5 and 6.6, apply any principles or criteria
for determining compensation set out in the law mentioned in
that section.
6.5. Compensation to be monetary
10 Subject to section 6.6, compensation may only consist of the
payment of money.
6.6. Requests for non-monetary compensation
(1) If the person claiming to be entitled to the compensation under
this Part requests that the whole or part of the compensation
15 should consist of the transfer of property or the provision of
goods or services, the Commission --
(a) must consider the request; and
(b) may, instead of determining the whole or any part of the
compensation, recommend that the person liable to give
20 the compensation should, within a specified period,
transfer property or provide goods or services in
accordance with the recommendation.
(2) If the person does not transfer the property or provide the goods
or services in accordance with the recommendation, the person
25 claiming to be entitled to the compensation may request the
Commission to determine instead that the whole or the part of
the compensation concerned is to consist of the payment of
money.
page 85
Native Title (State Provisions) Bill 1998
Part 6 Provisions relating to compensation
Division 3 Determination of amounts to be held in trust and payment of
those amounts
s. 6.7
(3) If the person does transfer the property or provide the goods or
services in accordance with the recommendation --
(a) the transfer of the property or provision of the goods or
services constitutes full compensation for the act; and
5 (b) the entitlement to it is taken to have been determined in
accordance with the provisions of this Part.
Division 3 -- Determination of amounts to be held in trust and
payment of those amounts
6.7. Conditions for payment of amounts to be held in trust
10 (1) This section applies to a condition in one of the following
instruments --
(a) a determination by the responsible Minister under
section 4.31;
(b) a determination by the Commission under section 4.46;
15 and
(c) a declaration by the responsible Minister under
section 4.53.
(2) If a condition is that an amount is to be paid and held in trust
until it is dealt with in accordance with section 6.8 --
20 (a) the Commission must determine the amount; and
(b) the amount, when paid, must be held in trust in
accordance with the regulations until it is dealt with in
accordance with that section.
6.8. How amounts held in trust to be dealt with
25 The relevant provisions of sections 6.9 to 6.14 apply if an
amount ("the trust amount") in respect of an act is being held
in trust in accordance with a condition referred to in
section 6.7(2) and any of the following happens --
page 86
Native Title (State Provisions) Bill 1998
Provisions relating to compensation Part 6
Determination of amounts to be held in trust and payment of Division 3
those amounts
s. 6.8
(a) an approved determination of native title is made to the
effect that there is no native title in relation to the area
concerned immediately before the act takes place;
(b) the Government party informs the trustee in writing that
5 it is not going to do the act;
(c) the following requirements are satisfied --
(i) an approved determination of native title is made
to the effect that the persons concerned are
(disregarding any holding of the native title in
10 trust under Part 2, Division 6 of the NTA) the
native title holders in relation to the area affected
by the act;
(ii) the registered native title body corporate advises
the trustee that it wishes to accept the trust
15 amount instead of any compensation to which
the native title holders may be entitled under the
NTA for the act; and
(iii) the person who paid the trust amount advises the
trustee that the person agrees to the registered
20 native title body corporate accepting the trust
amount instead of any compensation to which
the native title holders may be entitled under the
NTA for the act;
(d) a determination is made, on a claim for compensation in
25 respect of the act, that a person is entitled to
compensation, or that no compensation is payable to any
person;
(e) none of paragraphs (a), (b), (c) and (d) applies and the
Commission determines, on application by any person,
30 that it would be just and equitable in all the
circumstances to pay the trust amount to that person or
another person.
page 87
Native Title (State Provisions) Bill 1998
Part 6 Provisions relating to compensation
Division 3 Determination of amounts to be held in trust and payment of
those amounts
s. 6.9
6.9. Section 6.8(a) or (b) cases
Where section 6.8(a) or (b) applies, the trustee must --
(a) repay the trust amount to the person who paid it to the
trustee; or
5 (b) if that person no longer exists, apply to the Commission
for a direction as to the payment of the trust amount.
6.10. Section 6.8(c) cases
Where section 6.8(c) applies --
(a) the trustee must pay the trust amount to the body
10 corporate; and
(b) subject to section 53 of the NTA, there is no further
entitlement to compensation for the act.
6.11. Section 6.8(d) cases where monetary compensation
Where section 6.8(d) applies and the determination is that a
15 person is entitled to an amount of monetary compensation --
(a) if the trust amount is the same as the amount
determined, the trustee must pay the trust amount to the
person; or
(b) if the trust amount is less than the amount determined,
20 the trustee must pay the trust amount to the person and
the Government party must pay the shortfall to the
person; or
(c) if the trust amount is more than the amount determined,
the trustee must --
25 (i) pay the person so much of the trust amount as
equals the amount determined; and
(ii) refund the excess to the person who paid the trust
amount to the trustee or, if that person no longer
page 88
Native Title (State Provisions) Bill 1998
Provisions relating to compensation Part 6
Determination of amounts to be held in trust and payment of Division 3
those amounts
s. 6.12
exists, apply to the Commission for a direction as
to its payment.
6.12. Section 6.8(d) cases where non-monetary compensation
Where section 6.8(d) applies and --
5 (a) the transfer of property; or
(b) the provision of goods or services,
constitutes some or all of the compensation, the trustee must
apply to the Commission for a direction as to the payment of the
trust amount.
10 6.13. Section 6.8(d) cases where no compensation
Where section 6.8(d) applies and the determination is that no
compensation is payable or to be given to any person, the
trustee must repay the trust amount to the person who paid it to
the trustee or, if that person no longer exists, apply to the
15 Commission for a direction as to its payment.
6.14. Section 6.8(e) cases
Where paragraph (e) of section 6.8 applies, the trustee must pay
the trust amount in accordance with the decision of the
Commission mentioned in that paragraph.
20 6.15. Jurisdiction of the Commission under this Division
The Commission has jurisdiction --
(a) to hear and determine the applications referred to in
sections 6.8(e), 6.9(b), 6.11(c)(ii), 6.12, 6.13 and 6.14;
and
25 (b) to make such orders in the proceedings as it considers
appropriate.
page 89
Native Title (State Provisions) Bill 1998
Part 7 Native Title Commission
Division 1 Commission established
s. 7.1
Part 7 -- Native Title Commission
Division 1 -- Commission established
7.1. Establishment of Commission
The Native Title Commission of Western Australia is
5 established.
7.2. Functions of Commission
(1) The functions of the Commission are --
(a) to exercise the jurisdiction given to it by this Act;
(b) to perform any functions and exercise any powers vested
10 in it under section 207B of the NTA;
(c) subject to the necessary determination under the NTA,
to be a recognised body in relation to the State under
section 207A of the NTA;
(d) to perform any function delegated to it under
15 section 199F of the NTA;
(e) to provide mediation services as required by this Act or
otherwise in respect of matters connected with this Act;
(f) to compile and maintain a database of information in
accordance with section 7.41;
20 (g) to give assistance in connection with applications to the
Federal Court as provided in section 7.43; and
(h) to perform any other function given to it by any
enactment of the State or the Commonwealth.
(2) The Commission may do all things that are necessary or
25 convenient to be done for the performance of its functions.
page 90
Native Title (State Provisions) Bill 1998
Native Title Commission Part 7
Commission established Division 1
s. 7.3
7.3. Some particular requirements to be observed
(1) The Commission is to --
(a) perform its functions fairly, justly and expeditiously;
and
5 (b) ensure that, subject to this Act, its procedures are
informal and accessible.
(2) The Commission, in performing its functions under this Act,
may take account of the cultural and customary concerns of
Aboriginal peoples, but not so as to prejudice unduly a party to
10 any proceedings.
(3) Subsections (1) and (2) apply also to the Executive Director --
(a) in the performance of any functions and the exercise any
powers vested in him or her under section 207B of the
NTA; and
15 (b) in the performance of any function that may be
delegated to him or her under section 199F of the NTA.
(4) If under section 2.4 the Commission or the Executive Director
has functions and powers involving the maintenance of any
register under the NTA, the Commission or the Executive
20 Director is to ensure that the register --
(a) is accessible for public inspection; and
(b) is maintained in accordance with any agreement
between the Native Title Registrar and the Executive
Director for the maintenance of the register in a
25 nationally integrated manner.
7.4. Membership of the Commission
(1) The Commission is to comprise --
(a) a Chief Commissioner; and
page 91
Native Title (State Provisions) Bill 1998
Part 7 Native Title Commission
Division 1 Commission established
s. 7.5
(b) such number of other members as the Governor
considers necessary for the proper performance of the
Commission's functions.
(2) All of the members are to be appointed by the Governor.
5 (3) The Chief Commissioner is to be appointed on a full-time basis.
(4) An ordinary member may be appointed on either a full-time
basis or a part-time basis.
7.5. Eligibility for appointment as Chief Commissioner
A person is not eligible to be appointed as the Chief
10 Commissioner unless the person has been enrolled for at least 5
years as a legal practitioner of --
(a) the Supreme Court;
(b) the High Court; or
(c) the Supreme Court of another State or of a Territory.
15 7.6. Appointment of member of NNTT
(1) Subsection (2) has effect only while paragraph (f) of
section 207B(4) of the NTA requires the State law in respect of
membership of the Commission to comply with that paragraph.
(2) While this subsection has effect, not less than one of the
20 ordinary members is to be a person who holds an appointment
under the NTA as a member of the NNTT.
7.7. Qualifications for appointment
Without limiting section 7.6, a person must not be appointed as
an ordinary member unless the person --
25 (a) has been enrolled for at least 5 years as a legal
practitioner of --
(i) the Supreme Court;
page 92
Native Title (State Provisions) Bill 1998
Native Title Commission Part 7
Commission established Division 1
s. 7.8
(ii) the High Court; or
(iii) the Supreme Court of another State or of a
Territory;
or
5 (b) has, in the opinion of the Governor, expertise in one or
more of the following --
(i) matters relating to Aboriginal peoples;
(ii) land and resource management;
(iii) dispute resolution;
10 (iv) any other class of matter considered by the
Governor to be substantially relevant to the
duties of a member.
7.8. Appointment of ordinary members
(1) Where it is proposed to appoint any person as an ordinary
15 member of the Commission, the Minister must publish in --
(a) the Government Gazette;
(b) a daily newspaper circulating generally throughout the
State; and
(c) such other newspapers, journals or electronic media as
20 the Minister considers appropriate,
a notice that it is proposed to appoint one or more ordinary
members of the Commission.
(2) The notice referred to in subsection (1) must --
(a) set out the qualifications for appointment as an ordinary
25 member as required under section 7.7 of this Act;
page 93
Native Title (State Provisions) Bill 1998
Part 7 Native Title Commission
Division 2 Executive director and other staff
s. 7.9
(b) invite persons or organizations who wish to do so to
nominate, in the manner specified in the notice, persons
for consideration for appointment as an ordinary
member; and
5 (c) invite persons who wish to do so to inform the Minister,
in the manner specified in the notice, that they are
interested in becoming an ordinary member of the
Commission.
(3) This section does not apply to the appointment of an ordinary
10 member under section 7.6.
7.9. Delegation to members
The Chief Commissioner may, by signed instrument, delegate to
one or more of the ordinary members all or any of the Chief
Commissioner's functions under this Act, but not including this
15 power of delegation.
7.10. Other provisions relating to members
Schedule 1 has effect in relation to members.
Division 2 -- Executive director and other staff
7.11. Executive Director of the Commission
20 (1) There is to be an Executive Director of the Commission.
(2) Schedule 2 has effect in relation to the appointment and
conditions of service of the Executive Director.
(3) The office of Executive Director is not to be included in the
Senior Executive Service provided for by the Public Sector
25 Management Act 1994.
page 94
Native Title (State Provisions) Bill 1998
Native Title Commission Part 7
Executive director and other staff Division 2
s. 7.12
(4) The Executive Director is the chief employee of the
Commission for the purposes of the Public Sector Management
Act 1994.
7.12. Functions of Executive Director
5 (1) The functions of the Executive Director are --
(a) to perform any functions and exercise any powers vested
in him or her under section 207B of the NTA;
(b) to perform any function delegated to him or her under
section 199F of the NTA;
10 (c) to perform any function given to him or her by any
enactment of the State or Commonwealth;
and
(d) to be responsible, under the direction of the Chief
Commissioner, for managing the administrative affairs
15 of the Commission.
(2) The Executive Director may do all things necessary or
convenient to be done for the purposes of subsection (1)(d).
7.13. Other staff of the Commission
(1) Public service officers may be appointed or made available
20 under Part 3 of the Public Sector Management Act 1994 to
enable the Commission and the Executive Director to perform
their respective functions.
(2) The Executive Director may, acting under section 7.12 (1) (d),
engage a person under a contract for services to provide
25 professional, technical or other assistance to the Commission or
the Executive Director.
page 95
Native Title (State Provisions) Bill 1998
Part 7 Native Title Commission
Division 2 Executive director and other staff
s. 7.14
7.14. Use of government staff etc.
(1) Arrangements may be made under this section to enable the
Commission and the Executive Director to perform their
respective functions.
5 (2) An arrangement may be made with the relevant employer for
the use, either full-time or part-time, of the services of any
officer or employee --
(a) in the Public Service;
(b) in a State agency or instrumentality; or
10 (c) otherwise in the service of the Crown in right of the
State.
(3) An arrangement may be made with --
(a) a department of the Public Service; or
(b) a State agency or instrumentality,
15 for the use of any facilities of the department, agency or
instrumentality.
(4) Arrangements under this section --
(a) may be made by the Executive Director acting under
section 7.12 (1) (d); and
20 (b) are to be made on such terms as are agreed to by the
parties.
7.15. Delegation
(1) The Executive Director may by signed instrument delegate his
or her functions to one or more of the members of staff of the
25 Commission.
(2) Subsection (1) does not apply to --
(a) the power of delegation conferred by that subsection; or
page 96
Native Title (State Provisions) Bill 1998
Native Title Commission Part 7
Operation of commission Division 3
s. 7.16
(b) any power or function vested in the Executive Director
by section 207B(6) of the NTA.
Division 3 -- Operation of commission
Subdivision 1 -- How Commission to be constituted
5 7.16. General position
(1) For the performance of its functions in respect of a particular
matter the Commission consists of the member or members
specified by the Chief Commissioner under section 7.19 (2) for
that matter.
10 (2) In exercising the power referred to in subsection (1) in respect
of a matter to which subsection (1), (2) or (4) of section 7.17
applies, the Chief Commissioner is to ensure that the
constitution of the Commission satisfies that subsection.
7.17. Constitution of Commission for the performance of certain
15 functions
(1) For the performance of a function or the exercise of a power
vested in it under section 207B of the NTA the Commission
must include --
(a) at least one member who, in the opinion of the Chief
20 Commissioner, has expertise in matters relating to
Aboriginal people; and
(b) at least one member who holds an appointment under
the NTA as a member of the NNTT.
(2) For the performance of its functions under Part 4, other than its
25 mediation function under section 4.25 (1), the Commission
must, subject to subsection (3), include --
(a) at least one member who is qualified as mentioned in
section 7.7 (a); and
page 97
Native Title (State Provisions) Bill 1998
Part 7 Native Title Commission
Division 3 Operation of commission
s. 7.18
(b) at least one member who holds an appointment under
the NTA as a member of the NNTT.
(3) Subsection (2) does not apply if the Commission is a recognised
State/Territory body by virtue of a determination under section
5 207A of the NTA.
(4) The Commission when performing any function in relation to a
matter that involves the determination of an issue cannot be
constituted by, or include, a member who has taken part in
mediation in relation to that matter.
10 7.18. Concurrent operations
The Commission constituted in accordance with this Division
may perform the functions of the Commission in respect of a
particular matter, even though the Commission differently
constituted in accordance with this Division is at the same time
15 performing the functions of the Commission in respect of some
other matter.
Subdivision 2 -- Arrangement of business
7.19. Arrangement of business of the Commission
(1) The Chief Commissioner is responsible for --
20 (a) arranging the business of the Commission;
(b) directing where the Commission is to sit;
(c) determining the procedure of the Commission generally;
and
(d) determining the procedure of the Commission at a
25 particular place.
(2) In performing the function in subsection (1)(a) the Chief
Commissioner is to specify for the purpose of any particular
matter or any particular class of matters --
page 98
Native Title (State Provisions) Bill 1998
Native Title Commission Part 7
Operation of commission Division 3
s. 7.20
(a) the member or members who are to perform the
functions of the Commission; and
(b) if 2 or more members are specified, the member who is
to be the chairperson.
5 7.20. Unavailability of member
(1) This section applies if --
(a) a member specified under section 7.19(2) for
proceedings ceases to be a member and section 7.21
does not apply; or
10 (b) a member is for any reason not available for proceedings
for which the member has been specified under
section 7.19.
(2) Subject to subsection (3), the Chief Commissioner must specify
another member for the proceedings, and in doing so must
15 ensure, if subsection (1), (2) or (4) of section 7.17 applies, that
the constitution of the Commission continues to satisfy that
subsection.
(3) If the parties agree, the Chief Commissioner may direct that the
Commission be constituted by the remaining specified member
20 or members (if any).
7.21. Completion of part-heard proceedings
Despite a person ceasing to be a member because of the expiry
of his or her term of office, the person may, with the approval of
the Chief Commissioner, continue as a member for the purpose
25 of completing part-heard proceedings.
page 99
Native Title (State Provisions) Bill 1998
Part 7 Native Title Commission
Division 3 Operation of commission
s. 7.22
Subdivision 3 -- Hearings
7.22. Commission to hold hearings
The Commission is to hold such hearings as are necessary or
expedient for the performance of its functions.
5 7.23. Commission may determine matters to be covered by
proceedings
(1) The Commission may, of its own motion or on the application
of any of the parties concerned, direct that specified matters are
to be dealt with in the same proceedings or in separate
10 proceedings.
(2) Subsection (1) has effect subject to section 4.13.
7.24. Opportunity to make submissions
Subject to sections 7.28(3) and 7.30, the Commission must
ensure that each party is given a reasonable opportunity to
15 present the party's case and, in particular --
(a) to inspect any documents to which the Commission
proposes to have regard in making a recommendation or
determination; and
(b) to make written or oral submissions in respect of those
20 documents.
7.25. Questions to be decided by majority
All questions for decision by the Commission are to be decided
by a majority of the members hearing the matter, with the
chairperson having a casting vote.
page 100
Native Title (State Provisions) Bill 1998
Native Title Commission Part 7
Operation of commission Division 3
s. 7.26
7.26. Representation before Commission
A party may appear in person or be represented by any person
before the Commission.
7.27. Participation by telephone, etc.
5 The Commission may allow a person to participate in a hearing
by means of telephone, closed-circuit television or any other
means of communication.
7.28. Hearings normally to be public
(1) Subject to this section, a hearing by the Commission must be
10 held in public.
(2) If a hearing is in public, and a person participates by a means
allowed under section 7.27, the Commission must take such
steps as are reasonably necessary to maintain the public nature
of the hearing.
15 (3) The Commission may, of its own motion or on the application
of a party, if it is satisfied that it is appropriate to do so, direct
that a hearing, or part of a hearing, be held in private and give
directions as to the persons who may be present.
(4) In determining whether a hearing or part of a hearing is to be in
20 private, the Commission must have due regard to the concerns
of Aboriginal people.
Subdivision 4 -- Evidence and information
7.29. Evidence and findings of other bodies
In any proceedings, the Commission may, at its discretion --
25 (a) receive in evidence the transcript of evidence in any
other proceedings before the Commission, any court or
any other person or body;
page 101
Native Title (State Provisions) Bill 1998
Part 7 Native Title Commission
Division 3 Operation of commission
s. 7.30
(b) receive in evidence any report, findings, decision,
determination or judgment of a person or body referred
to in paragraph (a); or
(c) adopt any report, findings, decision, determination or
5 judgment of a person or body referred to in
paragraph (a),
that it considers may be relevant to the proceedings.
7.30. Commission may prohibit disclosure of evidence
The Commission may direct that --
10 (a) any evidence given before it; or
(b) the contents of any document produced to it,
must not be disclosed, or must not be disclosed except in the
way, and to the persons, specified in the direction.
7.31. Power of Commission to summon
15 The Commission may, by summons signed on behalf of the
Commission by the Executive Director, require any person --
(a) to appear before the Commission, or before a person
authorized under section 7.34; or
(b) to produce any documents specified in the summons to
20 the Commission or to a person authorized under
section 7.34,
or to do both of those things.
7.32. Power of Commission to take evidence
(1) The Commission may take evidence on oath or affirmation, and
25 for that purpose a member of the Commission may administer
an oath or affirmation.
(2) A party may call witnesses.
page 102
Native Title (State Provisions) Bill 1998
Native Title Commission Part 7
Operation of commission Division 3
s. 7.33
(3) A person appearing before the Commission as a witness may be
examined.
(4) A person appearing before the Commission as a witness may be
cross-examined or re-examined only with the leave of the
5 Commission.
(5) If a person participates in a hearing by a means allowed under
section 7.27, the Commission may make any arrangements that
it thinks proper in the circumstances for administering an oath
or affirmation to the person.
10 7.33. Power of the Commission to require answers
The Commission may require any person appearing before it
(whether or not he or she has been summoned to appear) to
answer any relevant question put to him or her by a member of
the Commission or by any other person appearing before the
15 Commission.
7.34. Commission may authorize another person to take evidence
(1) The Commission may authorize a person to take evidence in
relation to a matter on behalf of the Commission.
(2) The authorization must be in writing and may specify
20 limitations on the powers of the person.
(3) A person authorized under this section has, for the purposes of
taking the evidence, and subject to any limitations referred to in
subsection (2), all the powers of the Commission under
section 7.32.
25 7.35. Interpreters
The Commission may allow evidence to be given, or
submissions to be made, with the assistance of an interpreter.
page 103
Native Title (State Provisions) Bill 1998
Part 7 Native Title Commission
Division 4 Financial Provisions
s. 7.36
7.36. Retention and copying of documents
The Commission may keep for a reasonable time, and may
make copies of, any document, or part of a document, produced
to the Commission in the course of a hearing.
5 Subdivision 5 -- Recommendations and determinations
7.37. Determinations
(1) A recommendation or determination of the Commission must be
in writing and must state any findings of facts on which it is
based, referring to the evidence or other material on which such
10 findings are based and giving reasons for the recommendation
or determination.
(2) A copy of a recommendation or determination must be given
to --
(a) each of the parties in the proceeding; and
15 (b) the responsible Minister.
Division 4 -- Financial Provisions
7.38. Funds for carrying out this Act
The funds available for the purposes of this Act consist of --
(a) moneys from time to time appropriated by Parliament;
20 and
(b) other moneys lawfully received by, made available to or
payable to the Commission for the purposes of this Act.
7.39. Native Title Commission Account
(1) The funds referred to in section 7.38 are to be credited to an
25 account called the "Native Title Commission Account" --
(a) at the Treasury; or
page 104
Native Title (State Provisions) Bill 1998
Native Title Commission Part 7
General Division 5
s. 7.40
(b) with the approval of the Treasurer, at a bank,
and if paragraph (a) applies the Account is to form part of the
Trust Fund constituted under section 9 of the Financial
Administration and Audit Act 1985.
5 (2) The Account is to be charged with --
(a) the remuneration and allowances payable under this Act;
(b) all other expenditure lawfully incurred in carrying out
this Act.
7.40. Application of Financial Administration and Audit Act 1985
10 The provisions of the Financial Administration and Audit Act
1985 regulating the financial administration, audit and reporting
of statutory authorities apply to and in respect of the
Commission and things done in the performance of functions
under this Act.
15 Division 5 -- General
7.41. Particular function to compile data
(1) It is a function of the Commission to collect information, and
compile and maintain a database of information, about land in
the State in relation to --
20 (a) native title rights and interests; and
(b) matters relevant to --
(i) the existence of native title rights and interests;
(ii) the persons who hold native title rights and
interests or claim to hold them; and
25 (iii) the extinguishment of, or impact of acts on,
native title rights and interests.
page 105
Native Title (State Provisions) Bill 1998
Part 7 Native Title Commission
Division 5 General
s. 7.42
(2) The Commission may request any person to provide to the
Commission information in the possession of the person that the
Commission has reasonable grounds to believe is relevant to the
performance of its function under subsection (1).
5 (3) A person is to comply with a request so made unless the person
has reasonable excuse for not doing so.
(4) Without limiting subsection (3), a person has reasonable excuse
for the purposes of that subsection if the Commission has not
paid or agreed to pay any charge that the person usually makes
10 for the provision of the requested information to other persons.
7.42. Public access to database
(1) Members of the public --
(a) are to have reasonable access to the database maintained
under section 7.41; and
15 (b) are entitled, subject to payment of any prescribed fee, to
take copies of or extracts from any document in the
database.
(2) The Commission must not make particular information
available to the public if the Chief Commissioner considers that
20 it would not be in the public interest for the information to be
available to the public.
(3) In determining whether it would, or would not, be in the public
interest for information to be available to the public, the Chief
Commissioner must have due regard to the cultural and
25 customary concerns of Aboriginal peoples.
7.43. Assistance in relation to applications
(1) The Commission may provide such assistance as it considers
reasonable to --
page 106
Native Title (State Provisions) Bill 1998
Native Title Commission Part 7
General Division 5
s. 7.44
(a) help persons prepare native title and compensation
applications to the Federal Court; or
(b) help persons in matters related to such applications.
(2) Without limiting subsection (1), the assistance may include --
5 (a) the provision of research services; or
(b) the conducting of searches of current or former interests
in land or waters.
(3) In subsection (1) --
"native title and compensation applications" means
10 applications of the kind described in section 61(1) of the
NTA.
7.44. Notices and other documents to be written in other
languages
(1) If the Commission is required by or under this Act, to cause a
15 document or other instrument to be served on, or given to any
person, and it appears to the Commission that the person is
blind or illiterate or not literate in the English language, the
Commission is, in so far as it is reasonably practicable, to cause
the information contained in the document or other instrument
20 to be communicated to the person in a manner that the person
understands.
(2) Failure to comply with this section does not affect any thing
done under any other provision of this Act.
7.45. Reference of question of law to the Supreme Court
25 (1) The Commission may, on its own motion or at the request of a
party, refer to the Supreme Court for a decision any question of
law arising in proceedings under Part 3, 4, 5 or 6.
page 107
Native Title (State Provisions) Bill 1998
Part 7 Native Title Commission
Division 5 General
s. 7.46
(2) The Supreme Court has jurisdiction to hear and determine a
question of law referred to it under this section.
(3) If a question of law arising in proceedings is referred to the
Supreme Court under this section, the Commission must not, in
5 those proceedings --
(a) make a recommendation or determination to which the
question is relevant while the reference is pending; or
(b) proceed in a manner, or make a recommendation or
determination, inconsistent with the decision of the
10 Court on the question.
7.46. Offences
(1) A person who is served with a summons under section 7.31 must
not fail without reasonable excuse to comply with the summons.
Penalty: $2 500.
15 (2) A person must not fail without reasonable excuse to make an
oath or affirmation, or to answer a question, when required to do
so by the Commission.
Penalty: $2 500.
(3) A person must not give to --
20 (a) the Commission; or
(b) a person authorized under section 7.34,
evidence that the person knows to be false or misleading in a
material particular.
Penalty: $5 000.
25 (4) A person must not misbehave before the Commission, wilfully
insult the Commission or a member, or interrupt the
proceedings of the Commission.
Penalty: $5 000.
page 108
Native Title (State Provisions) Bill 1998
Native Title Commission Part 7
General Division 5
s. 7.47
(5) A person must not disclose any material in contravention of a
direction given under section 7.28 or 7.30.
Penalty: $5 000.
7.47. Disclosure of interests
5 (1) A member who has a conflict of interest in relation to any
proceedings must disclose the matters giving rise to that
conflict --
(a) in the case of the Chief Commissioner, to the Minister
and to each party; or
10 (b) in any other case, to the Chief Commissioner and to
each party.
(2) The member must not take part in, or exercise any powers in
relation to, the proceedings unless --
(a) in the case of the Chief Commissioner, the Minister and
15 each party consents; or
(b) in any other case, the Chief Commissioner and each
party consents.
(3) For the purposes of this section, a member has a conflict of
interest in relation to proceedings if the member has any
20 interest, pecuniary or otherwise, that could conflict with the
proper performance of the member's functions in relation to
those proceedings.
7.48. Protection of members and persons appearing before the
Commission
25 (1) A member has, in the performance of his or her functions, the
same protection and immunity as a Judge of the Supreme Court.
page 109
Native Title (State Provisions) Bill 1998
Part 7 Native Title Commission
Division 5 General
s. 7.49
(2) A person appearing before the Commission on behalf of a party
has the same protection and immunity as a barrister has in
appearing on behalf of a party before the Supreme Court.
(3) Subject to this Act, a person appearing before the Commission
5 to give evidence (whether or not in response to a summons) has
the same protection, and is, in addition to the penalties provided
by this Act, subject to the same liabilities as a witness in
proceedings in the Supreme Court.
7.49. Confidentiality
10 (1) A person who is, or has been, a member or officer of the
Commission is not competent, and cannot be required, to give
evidence to a court relating to a matter if --
(a) the giving of the evidence would be contrary to a
direction under section 7.30; or
15 (b) an application has been made to the Commission for a
direction under that section concerning the matter to
which the evidence relates, and the Commission has not
yet determined that application.
(2) A person who is, or has been, a member or an officer of the
20 Commission cannot be required to produce in court a document
given to the Commission in connection with a proceeding if --
(a) the production of the document would be contrary to a
direction under section 7.30; or
(b) an application has been made to the Commission for a
25 direction under that section concerning the matter to
which the document relates, and the Commission has
not yet determined that application.
(3) A person who is, or has been, a member or an officer of the
Commission cannot be required to give evidence to a court in
30 relation to any proceedings before the Commission.
page 110
Native Title (State Provisions) Bill 1998
Native Title Commission Part 7
General Division 5
s. 7.50
(4) In this section --
"court" includes any tribunal, authority or person having the
power to require the answering of questions or the
production of documents;
5 "produce" includes permit access to.
7.50. Annual report of Commission
(1) The Commission, on or before 30 September in each year, is to
prepare and present to the Minister a report on the operations of
the Commission during the period of 12 months ending on the
10 preceding 30 June.
(2) The Minister is to cause the report to be laid before both Houses
of Parliament as soon as is practicable after its receipt by the
Minister.
7.51. Review of Act
15 (1) The Minister is to carry out a review of the operation and
effectiveness of this Act within 12 months after the expiration
of 5 years from the commencement of this Act with particular
regard to whether the public policy objectives of the Act remain
valid and whether the terms of the Act remain appropriate for
20 securing those objectives.
(2) The Minister is to prepare a report based on the review made
under subsection (1) and cause the report to be laid before each
House of Parliament within 12 months after the commencement
of the review.
page 111
Native Title (State Provisions) Bill 1998
Part 8 Miscellaneous
s. 8.1
Part 8 -- Miscellaneous
8.1. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted to be prescribed or are necessary or
5 convenient to be prescribed for the purposes of this Act.
(2) Without limiting subsection (1), the regulations may prescribe
fees that are to be paid in connection with applications to, and
proceedings in, the Commission.
8.2. Consequential amendments
10 Schedule 3 has effect.
page 112
Native Title (State Provisions) Bill 1998
Provisions relating to members of the Commission Schedule 1
Schedule 1 -- Provisions relating to members of
the Commission
[s. 7.10]
1. Term of office
5 (1) A member holds office for the term specified in the instrument of
appointment but may from time to time be reappointed.
(2) Subject to subclause (3), a term of appointment must not exceed
5 years.
(3) An appointment may be made for a term of more than 5 years and not
10 more than 7 years and 6 months if --
(a) the appointment is made within 12 months after the
commencement of this clause; and
(b) on the making of the appointment, members appointed under
this subclause do not constitute more than half of the
15 membership.
2. Remuneration, allowances and conditions of service
(1) A member is to --
(a) receive such remuneration and allowances; and
(b) have such entitlements to leave and other conditions of
20 service,
as are determined by the Governor on the advice of the Minister for
Public Sector Management.
(2) Subclause (1) does not apply to the member referred to in section 7.6.
3. Oath or affirmation of office
25 Before he or she takes up office a member is to take an oath or make
an affirmation before a Judge of the Supreme Court that he or she will
faithfully and impartially perform the functions of his or her office.
page 113
Native Title (State Provisions) Bill 1998
Schedule 1 Provisions relating to members of the Commission
4. Leave of absence
The Minister may grant a full-time member leave of absence, other
than leave of absence determined under clause 2, on such terms and
conditions as the Minister determines.
5 5. Resignation
A member may resign from office by giving a signed notice of
resignation to the Governor.
6. Termination of appointment of NNTT member
(1) The appointment of a person who is appointed as a member for the
10 purposes of section 7.6 terminates if --
(a) the person ceases to be a member of the NNTT; or
(b) subsection (2) of that section ceases to have effect.
(2) The application of subclause (1) to a person does not affect the
application to him or her of clause 7, 8 or 9.
15 7. Termination of appointment of member for bankruptcy etc.
The Governor must terminate the appointment of a member if the
member --
(a) becomes bankrupt;
(b) applies to take the benefit of any law for the relief of
20 bankrupt or insolvent debtors;
(c) compounds with his or her creditors; or
(d) makes an assignment of his or her remuneration for the
benefit of his or her creditors.
8. Suspension by Governor and termination
25 (1) The Governor may suspend a member from office on the ground of
misbehaviour or of physical or mental incapacity.
page 114
Native Title (State Provisions) Bill 1998
Provisions relating to members of the Commission Schedule 1
(2) If the Governor suspends a member under subclause (1), the Minister
must cause a statement of the grounds for the suspension to be laid
before each House of Parliament within 7 sitting days of that House
after the suspension.
5 (3) If each House of Parliament, within 15 sitting days after the statement
was laid before it, declares by resolution that the member's
appointment should be terminated, the Governor must terminate the
member's appointment.
(4) If, at the end of 15 sitting days after the statement was laid before a
10 House of Parliament, the House has not passed such a resolution, the
suspension terminates.
(5) The suspension of a member under this clause does not affect any
entitlement of the member to be paid remuneration and allowances.
9. Termination on address of both Houses of Parliament
15 The Governor may terminate the appointment of a member if an
address praying for the termination of the member's appointment on
the ground of proved misbehaviour or of physical or mental
incapacity is presented to the Governor by each House of Parliament
in the same session of Parliament.
page 115
Native Title (State Provisions) Bill 1998
Schedule 2 Appointment and conditions of service of the Executive Director
Schedule 2 -- Appointment and conditions of service of the
Executive Director
[s. 7.11(2)]
1. Appointment
5 (1) The Executive Director is to be appointed by the Governor.
(2) An appointment is to be for a term of not more than 5 years.
(3) The Executive Director may be reappointed from time to time at the
end of a term of office unless he or she has been removed from office
by the Governor under clause 3.
10 2. Conditions of service
(1) The Executive Director's conditions of service are to be determined
by the Governor.
(2) Subject to the Salaries and Allowances Act 1975, the Executive
Director is to be paid such remuneration and allowances as the
15 Governor determines.
3. Removal
(1) The Governor may, at any time, remove the Executive Director from
office --
(a) for disability, neglect of duty or misconduct; or
20 (b) if he or she engages in any other paid employment without
the approval of the Commission.
(2) The Governor must remove the Executive Director from office if he
or she is an insolvent under administration as that expression is
defined in the Corporations Law.
page 116
Native Title (State Provisions) Bill 1998
Appointment and conditions of service of the Executive Schedule 2
Director
4. Resignation
The Executive Director may at any time resign from office by writing
under his or her hand addressed to the Minister.
page 117
Native Title (State Provisions) Bill 1998
Schedule 3 Consequential amendments
Schedule 3 -- Consequential amendments
[s. 8.2]
Division 1 -- Mining Act 1978
1. The Act amended
5 The amendments in this Division are to the Mining Act 1978*.
[* Reprinted as at 27 February 1996.
For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, pp. 156-7 and Acts Nos. 31 of
1997 and 10 and 35 of 1998.]
10 2. Section 19 amended
(1) Section 19(6)(a) is amended by inserting immediately before "grant"
the following --
" subject to subsection (6a), ".
(2) After section 19(6) the following subsection is inserted --
15 "
(6a) If the grant of a mining tenement under subsection (6)
is a Part 3 act, a Part 4 act or a Part 5 act within the
meaning of the Native Title (State Provisions)
Act 1998, the operation of that subsection is subject to
20 section 3.6, 4.5 or 5.3 of that Act as the case may be.
".
page 118
Native Title (State Provisions) Bill 1998
Consequential amendments Schedule 3
3. Section 39A inserted
Immediately before section 40 the following section is inserted --
"
39A. This Division subject to Native Title (State
5 Provisions) Act 1998
(1) The operation of this Division is subject to section 3.6
or 4.5, as the case may be, of the Native Title (State
Provisions) Act 1998 where --
(a) the grant of a prospecting licence; or
10 (b) the grant of any mining tenement under
section 56A,
is a Part 3 act or a Part 4 act within the meaning of that
Act.
(2) The provisions of this Division relating to objections to
15 the granting of an application do not apply to an
objection of the kind referred to in section 3.16 or 4.16
of the Native Title (State Provisions) Act 1998, and
objections of that kind can only be made under that
Act.
20 ".
4. Section 49 amended
After section 49(1) the following subsection is inserted --
"
(1a) The operation of subsection (1) is subject to section 3.6
25 or 4.5, as the case may be, of the Native Title (State
Provisions) Act 1998.
".
page 119
Native Title (State Provisions) Bill 1998
Schedule 3 Consequential amendments
5. Section 56 amended
After section 56(1) the following subsection is inserted --
"
(1a) An appeal does not lie under subsection (1) where the
5 warden does not grant an application, or attaches any
condition to a grant, because of one of the following
instruments made under the Native Title (State
Provisions) Act 1998 --
(a) an agreement of the kind described in
10 section 3.27 or 4.24 that is given to the
Commission under section 3.27 or 4.27;
(b) a recommendation under section 3.33;
(c) a determination under section 3.39, 4.31
or 4.46;
15 (d) a declaration under section 4.53.
".
6. Section 56AA inserted
Immediately before section 56B the following section is inserted --
"
20 56AA. This Division subject to Native Title (State
Provisions) Act 1998
(1) The operation of this Division is subject to section 3.6
or 4.5, as the case may be, of the Native Title (State
Provisions) Act 1998 where --
25 (a) the grant or extension of an exploration licence;
or
page 120
Native Title (State Provisions) Bill 1998
Consequential amendments Schedule 3
(b) the grant of any mining tenement under
section 70,
is a Part 3 act or a Part 4 act within the meaning of that
Act.
5 (2) The provisions of this Division relating to objections to
the granting of an application do not apply to an
objection of the kind referred to in section 3.16 or 4.16
of the Native Title (State Provisions) Act 1998, and
objections of that kind can only be made under that
10 Act.
".
7. Section 67 amended
After section 67(1) the following subsection is inserted --
"
15 (1a) The operation of subsection (1) is subject to section 3.6
or 4.5, as the case may be, of the Native Title (State
Provisions) Act 1998.
".
8. Section 70AA inserted
20 After section 70A the following section is inserted --
"
70AA. This Division subject to Native Title (State
Provisions) Act 1998
(1) The operation of this Division is subject to section 3.6
25 or 4.5, as the case may be, of the Native Title (State
Provisions) Act 1998 where the grant or renewal of a
retention licence is a Part 3 act or a Part 4 act within
the meaning of that Act.
page 121
Native Title (State Provisions) Bill 1998
Schedule 3 Consequential amendments
(2) The provisions of this Division relating to objections to
the granting of an application do not apply to an
objection of the kind referred to in section 3.16 or 4.16
of the Native Title (State Provisions) Act 1998, and
5 objections of that kind can only be made under that
Act.
".
9. Section 70L amended
After section 70L(1) the following subsection is inserted --
10 "
(1a) The operation of subsection (1) is subject to section 3.6
or 4.5, as the case may be, of the Native Title (State
Provisions) Act 1998.
".
15 10. Section 70O inserted
Immediately before section 71 the following section is inserted --
"
70O. This Division subject to Native Title (State
Provisions) Act 1998
20 (1) Where --
(a) the grant or renewal of a mining lease; or
(b) the grant of any mining tenement under
section 85B,
is a Part 3 act or a Part 4 act within the meaning of the
25 Native Title (State Provisions) Act 1998, the operation
of the provisions of this Division relating to that grant
or renewal is subject to section 3.6 or 4.5, as the case
may be, of that Act.
page 122
Native Title (State Provisions) Bill 1998
Consequential amendments Schedule 3
(2) The provisions of this Division relating to objections to
the granting of an application do not apply to an
objection of the kind referred to in section 3.16 or 4.16
of the Native Title (State Provisions) Act 1998, and
5 objections of that kind can only be made under that
Act.
".
11. Section 75 amended
After section 75(7) the following subsection is inserted --
10 "
(8) The operation of subsection (7) is subject to section 3.6
or 4.5, as the case may be, of the Native Title (State
Provisions) Act 1998.
".
15 12. Section 85C inserted
Immediately before section 86 the following section is inserted --
"
85C. This Division subject to Native Title (State
Provisions) Act 1998
20 (1) The operation of this Division in relation to the grant of
general purpose leases is subject to section 3.6, 4.5 or
5.3, as the case may be, of the Native Title (State
Provisions) Act 1998.
(2) Where the renewal of a general purpose lease is a Part
25 3 act, a Part 4 act or a Part 5 act within the meaning of
the Native Title (State Provisions) Act 1998, the
operation of this Division in relation to that renewal is
subject to section 3.6, 4.5 or 5.3, as the case may be, of
that Act.
page 123
Native Title (State Provisions) Bill 1998
Schedule 3 Consequential amendments
(3) The provisions relating to objections to the granting of
an application that apply for the purposes of this
Division do not apply to an objection of the kind
referred to in section 3.16, 4.16 or 5.11 of the Native
5 Title (State Provisions) Act 1998, and objections of that
kind can only be made under that Act.
".
13. Section 90A inserted
Immediately before section 91 the following section is inserted --
10 "
90A. This Division subject to Native Title (State
Provisions) Act 1998
(1) The operation of this Division is subject to section 3.6,
4.5 or 5.3, as the case may be, of the Native Title (State
15 Provisions) Act 1998 where the grant of a
miscellaneous licence is a Part 3 act, a Part 4 act or a
Part 5 act within the meaning of that Act.
(2) The provisions relating to objections to the granting of
an application that apply for the purposes of this
20 Division do not apply to an objection of the kind
referred to in section 3.16, 4.16 or 5.11 of the Native
Title (State Provisions) Act 1998, and objections of that
kind can only be made under that Act.
".
page 124
Native Title (State Provisions) Bill 1998
Consequential amendments Schedule 3
Division 2 -- Petroleum Act 1967
14. The Act amended
The amendments in this Division are to the Petroleum Act 1967*.
[* Reprinted as at 17 December 1992.
5 For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, p. 177 and Act No. 31 of 1997.]
15. Section 5 amended
After section 5(8) the following subsection is inserted --
"
10 (9) If the exercise of the power conferred by subsection (8)
to amend or vary any instrument is a Part 3 act or a
Part 4 act within the meaning of the Native Title (State
Provisions) Act 1998 that exercise is subject to
section 3.6 or 4.5, as the case may be, of that Act.
15 ".
16. Section 11 amended
After section 11(1) the following subsection is inserted --
"
(1a) If any act to be done under subsection (1) is a Part 3 act
20 or a Part 4 act within the meaning of the Native Title
(State Provisions) Act 1998, the operation of that
subsection is subject to section 3.6 or 4.5, as the case
may be, of that Act.
".
page 125
Native Title (State Provisions) Bill 1998
Schedule 3 Consequential amendments
17. Section 28B inserted
Immediately before section 29 the following section is inserted --
"
28B. This Division subject to Native Title (State
5 Provisions) Act 1998
The operation of this Division is subject to section 3.6
or 4.5, as the case may be, of the Native Title (State
Provisions) Act 1998 where the grant, renewal or
extension of an exploration permit or a drilling
10 reservation is a Part 3 act or a Part 4 act within the
meaning of that Act.
".
18. Section 48AA inserted
Immediately before section 48A the following section is inserted --
15 "
48AA. This Division subject to Native Title (State
Provisions) Act 1998
The operation of this Division is subject to section 3.6
or 4.5, as the case may be, of the Native Title (State
20 Provisions) Act 1998 where the grant or renewal of a
retention lease is a Part 3 act or a Part 4 act within the
meaning of that Act.
".
page 126
Native Title (State Provisions) Bill 1998
Consequential amendments Schedule 3
19. Section 48L inserted
Immediately before section 49 the following section is inserted --
"
48L. This Division subject to Native Title (State
5 Provisions) Act 1998
Where the grant or renewal of a production licence is a
Part 3 act or a Part 4 act within the meaning of the
Native Title (State Provisions) Act 1998, the operation
of the provisions of this Division relating to that grant
10 or renewal is subject to section 3.6 or 4.5, as the case
may be, of that Act.
".
20. Section 105 amended
After section 105(3) the following subsection is inserted --
15 "
(3a) Where the grant of a special prospecting authority
under subsection (3) is a Part 3 act or a Part 4 act
within the meaning of the Native Title (State
Provisions) Act 1998, the operation of that subsection
20 is subject to section 3.6 or 4.5 as the case may be, of
that Act.
".
21. Section 106 amended
After section 106(3) the following subsection is inserted --
25 "
(3a) Where the grant of an access authority under
subsection (3) is a Part 3 act or a Part 4 act within the
meaning of the Native Title (State Provisions)
page 127
Native Title (State Provisions) Bill 1998
Schedule 3 Consequential amendments
Act 1998, the operation of that subsection is subject to
section 3.6 or 4.5, as the case may be, of that Act.
".
22. Section 116 amended
5 After section 116(1) the following subsection is inserted --
"
(1a) Where the giving of a consent under subsection (1) is a
Part 3 act or a Part 4 act within the meaning of the
Native Title (State Provisions) Act 1998, the operation
10 of that subsection is subject to section 3.6 or 4.5, as the
case may be, of that Act.
".
Division 3 -- Petroleum Pipelines Act 1969
23. The Act amended
15 The amendments in this Division are to the Petroleum Pipelines
Act 1969*.
[* Reprinted as at 19 February 1992.
For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, p. 177 and Act No. 31 of 1997.]
20 24. Section 10A inserted
After section 10 the following section is inserted --
"
10A. Licence not to affect native title
(1) A licence is not to be taken to authorize the licensee or
25 any other person to do any act that affects native title.
(2) In subsection (1) --
page 128
Native Title (State Provisions) Bill 1998
Consequential amendments Schedule 3
"affects" and "native title" have the meanings given
to them respectively by sections 227 and 223 of
the Native Title Act 1993 of the Commonwealth.
".
5 25. Section 19 amended
After section 19(1) the following subsection is inserted --
"
(1a) Where the taking of land or an easement in land under
subsection (1) is a Part 3 act or a Part 4 act within the
10 meaning of the Native Title (State Provisions)
Act 1998, the operation of that subsection is subject to
section 3.6 or 4.5, as the case may be, of that Act.
".
Division 4 -- Constitution Acts Amendment Act 1899
15 26. Schedule V amended
Schedule V to the Constitution Acts Amendment Act 1899* is
amended in Part 1, in Division 1, by inserting in the appropriate
alphabetical positions the following --
"
20 Executive Director of the Native Title Commission
appointed under the Native Title (State Provisions) Act
1998.
Member of the Native Title Commission established by the
Native Title (State Provisions Act) 1998.
25 ".
[* Reprinted as at 22 January 1997.
For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, p. 49 and Acts Nos. 22 of 1997 and 4,
10, 13, 23 and 30 of 1998.]
page 129
Native Title (State Provisions) Bill 1998
Schedule 3 Consequential amendments
Division 5 -- Financial Administration and Audit Act 1985
27. Schedule 1 amended
Schedule 1 to the Financial Administration and Audit Act 1985* is
amended by inserting in the appropriate alphabetical position the
5 following --
"
Native Title Commission
".
[* Reprinted as at 10 January 1997.
10 For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, p. 84 and Acts Nos. 22 of 1997 and 4,
23 and 30 of 1998 and Gazette 12 May 1998, 7 August 1998 and
18 September 1998.]
Division 6 -- Parliamentary Commissioner Act 1971*
15 28. Schedule 1 amended
Schedule 1 to the Parliamentary Commissioner Act 1971 is amended
by inserting in the appropriate alphabetical position the following --
"
The Native Title Commission established by the Native Title
20 (State Provisions) Act 1998.
".
[* Reprinted as at 20 January 1997.
For subsequent amendments see Acts Nos. 41 of 1997 and
10 of 1998.]
page 130
Native Title (State Provisions) Bill 1998
List of defined words and expressions
This is a list of words and expressions used in this Act and defined in the Native Title Act 1993 of
the Commonwealth. Column 2 indicates the section of that Act in which each definition can be
found. The list is not part of this Act.
1. Word or expression 2. NTA section
Aboriginal peoples .................................................................................................. 253
act........................................................................................................................... 226
affect....................................................................................................................... 227
approved determination of native title...................................................................... 253
arbitral body............................................................................................................ 253
attributable.............................................................................................................. 239
Commonwealth Minister ........................................................................................ 253
determination of native title ..................................................................................... 225
Federal Court ......................................................................................................... 253
future act ................................................................................................................ 233
Government party ................................................................................................... 253
interest ................................................................................................................... 253
land ........................................................................................................................ 25 3
mine........................................................................................................................ 253
native title .............................................................................................................. 223
native title claim group ........................................................................................... 253
native title holder ................................................................................................... 224
native title party ..................................................................................................... 253
Native Title Registrar ............................................................................................. 253
native title rights and interests ................................................................................ 223
NNTT ..................................................................................................................... 253
permissible lease etc. .............................................................................................24IC
registered native title body corporate ...................................................................... 253
registered native title claimant ................................................................................ 253
representative body ................................................................................................. 253
State Minister ......................................................................................................... 253
valid ....................................................................................................................... 253
waters .................................................................................................................... 253
page 131
[Index] [Search] [Download] [Related Items] [Help]