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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Native Title (State Provisions) Bill 1999
CONTENTS
Part 1 -- Preliminary
1.1. Short title 2
1.2. Commencement 2
1.3. Objects 3
1.4. Act binds the Crown 3
1.5. Interpretation 3
1.6. Performance of certain functions on behalf of Minister 6
1.7. Replacement of person as objector etc. 6
1.8. Objector ceasing to be a registered native title
claimant 7
Part 2 -- Consultation procedures for
alternative provision areas
Division 1 -- Preliminary
2.1. Definitions 8
2.2. Request for determination under section 43A of the
NTA 9
2.3. Transitional provisions 9
2.4. Object of this Part 9
Division 2 -- Relevant future acts and their validity
2.5. Acts to which this Part applies 10
2.6. Circumstances in which act is not valid 10
page i
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Native Title (State Provisions) Bill 1999
Contents
2.7. Part 3 may be applied to a Part 2 act 12
2.8. Other statutory requirements not affected 12
Division 3 -- Notices and objections
2.9. Proponent where act relates to mining 13
2.10. Identification of proponents in other cases 13
2.11. Closing day for objections 14
2.12. Notification of acts 14
2.13. Further provision as to notices 14
2.14. Who gives notice 15
2.15. Prescribed provisions about notice 16
2.16. Right to object to doing of act 16
2.17. Requirements for objections 17
2.18. Time limit 17
2.19. Government party to notify the Commission of
objections 18
2.20. Withdrawal of request etc. by proponent 18
2.21. Withdrawal of proposal by Government party 19
Division 4 -- Consultation and agreements
2.22. Meaning of "consultation parties" 19
2.23. Consultation 20
2.24. Involvement of Commission, including mediation 20
2.25. Withdrawal of objection 21
2.26. Agreement made by parties 21
Division 5 -- Recommendations of the Commission
2.27. Commission may notify intention to hear 21
2.28. Consultations may continue 22
2.29. Dismissal of objections 23
2.30. Time for making recommendation 23
2.31. No recommendation if agreement etc. 24
2.32. Making of recommendation 24
2.33. Criteria for making recommendations 25
2.34. Issues on which parties agree 25
2.35. Copy of recommendation to be given 26
2.36. Effect of recommendation 26
2.37. Effect of recommendation that specifies conditions 26
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Native Title (State Provisions) Bill 1999
Contents
Division 6 -- Overruling of recommendations
2.38. Responsible Minister may overrule a recommendation 27
2.39. Determinations that responsible Minister may make 27
2.40. Consultation before making of determination 28
2.41. Ground on which determination may be made 29
2.42. Conditions in determination 30
2.43. Responsible Minister may declare intention not to
overrule 30
Division 7 -- Applications
2.44. Definition 31
2.45. Form and contents of application 31
2.46. Material and fees to accompany applications 31
2.47. Application fee may be waived 31
Division 8 -- Judicial review
2.48. Application for review 31
2.49. Time limit for application 32
2.50. Procedure 33
2.51. Grounds on which application may be made 33
2.52. Powers of Court 33
2.53. Effect on other remedies 33
Part 3 -- Right to negotiate procedures for
areas not covered by Part 2
Division 1 -- Preliminary
3.1. Request for determination under section 43(1)(b) of
the NTA 34
3.2. Transitional provisions 34
3.3. Object of this Part 34
Division 2 -- Relevant future acts and their validity
3.4. Acts to which this Part applies 35
3.5. Circumstances in which act is not valid 35
3.6. Other statutory requirements not affected 37
Division 3 -- Notices and objections
3.7. Proponent where act relates to mining 37
3.8. Identification of proponents in other cases 38
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Native Title (State Provisions) Bill 1999
Contents
3.9. Closing day for objections 38
3.10. Notification of acts 39
3.11. Further provision as to notices 39
3.12. Notice may relate to 2 or more acts 41
3.13. Who gives notice 41
3.14. Prescribed provisions about notice 41
3.15. Right to object to doing of act 42
3.16. Requirements for objections 42
3.17. Time limit 42
3.18. Government party to notify the Commission of
objections 43
3.19. Withdrawal of request etc. by proponent 43
3.20. Withdrawal of proposal by Government party 44
Division 4 -- Negotiations and agreements
3.21. Meaning of "negotiation parties" 44
3.22. Negotiations 45
3.23. Involvement of Commission, including mediation 47
3.24. Withdrawal of objection 47
3.25. Agreement made by parties 47
3.26. Commission's function in respect of an agreement 48
3.27. Effect of conditional agreement 48
Division 5 -- Determinations
Subdivision 1 -- Ministerial determination where
Commission determination unreasonably delayed
3.28. Responsible Minister may give Commission notice as
to urgency 49
3.29. Responsible Minister may make determination 50
3.30. Grounds for making determination 51
3.31. Consultation with Commonwealth Minister 51
3.32. Notice and submissions etc. 51
3.33. Material etc. taken into account 53
3.34. Minister's power not limited 53
3.35. No duty to make determination 53
3.36. Conditions to have contractual effect 54
3.37. Copy of determination to be given 54
3.38. Copy of determination to be laid before Parliament 55
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Native Title (State Provisions) Bill 1999
Contents
Subdivision 2 -- Determination by Commission
3.39. Commission may notify intention to hear 55
3.40. Negotiations may continue 57
3.41. Dismissal of objections 57
3.42. Time for making determination 57
3.43. No determination if agreement etc. 58
3.44. Making of determination 58
3.45. Criteria for making determinations 59
3.46. Issues on which parties agree 60
3.47. Determination may provide for issues to be resolved
later 61
3.48. No reopening of certain issues previously decided 61
3.49. Copy of determination to be given 62
3.50. Effect of conditional determination 62
Division 6 -- Overruling of Commission's
determination
3.51. Responsible Minister may overrule 63
3.52. Declarations that responsible Minister may make 63
3.53. Grounds on which declaration may be made 64
3.54. Conditions in declaration 65
3.55. Responsible Minister may declare intention not to
overrule 65
Division 7 -- Applications
3.56. Definition 66
3.57. Form and contents of application 66
3.58. Material and fees to accompany applications 66
3.59. Application fee may be waived 66
Part 4 -- Consultation procedures for acts to
which section 24MD(6B) of the NTA applies
Division 1 -- Preliminary
4.1. Object of this Part 67
4.2. Acts to which this Part applies 67
4.3. Requirements to be satisfied before a Part 4 act is
done 67
4.4. Other statutory requirements not affected 69
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Native Title (State Provisions) Bill 1999
Contents
Division 2 -- Notices and objections
4.5. Proponent where act relates to mining 69
4.6. Identification of proponents in other cases 69
4.7. Closing day for objections 70
4.8. Notification of acts by Government party 70
4.9. Further provision as to notices 71
4.10. Prescribed provisions about notice 71
4.11. Right to object to doing of act 72
4.12. Requirements for objections 72
4.13. Time limit 73
4.14. Government party to notify the Commission of
objections 73
4.15. Withdrawal of request etc. by proponent 73
4.16. Withdrawal of proposal by Government party 74
Division 3 -- Consultation and agreements
4.17. Meaning of "consultation parties" 74
4.18. Consultation 75
4.19. Involvement of Commission, including mediation 75
4.20. Withdrawal of objection 76
4.21. Agreement made by parties 76
Division 4 -- Recommendations of the Commission
4.22. Commission may notify intention to hear 76
4.23. Consultations may continue 77
4.24. Dismissal of objections 78
4.25. Time for making recommendation 78
4.26. No recommendation if agreement etc. 78
4.27. Making of recommendation 79
4.28. Criteria for making recommendations 79
4.29. Issues on which parties agree 80
4.30. Copy of recommendation to be given 80
4.31. Effect of recommendation 80
4.32. Effect of recommendation that specifies conditions 80
Division 5 -- Overruling of recommendations
4.33. Responsible Minister may overrule a recommendation 81
4.34. Determinations that responsible Minister may make 81
4.35. Consultation before making of determination 82
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Native Title (State Provisions) Bill 1999
Contents
4.36. Ground on which determination may be made 83
4.37. Conditions in determination 84
4.38. Responsible Minister may declare intention not to
overrule 84
Division 6 -- Applications
4.39. Definition 85
4.40. Form and contents of application 85
4.41. Material and fees to accompany applications 85
4.42. Application fee may be waived 85
Part 5 -- Provisions relating to
compensation
Division 1 -- Preliminary
5.1. Definition 86
Division 2 -- Determination of compensation
5.2. Commission to determine compensation for certain
acts 86
5.3. Enforcement of order for compensation 88
Division 3 -- Principles to be applied in the
determination of compensation
5.4. No multiple compensation for essentially same act 89
5.5. Compensation principles to be as for ordinary title 89
5.6. Compensation to be monetary 89
5.7. Requests for non-monetary compensation 89
Division 4 -- Determination of amounts to be held in
trust and payment of those amounts
5.8. Conditions for payment of amounts to be held in trust 90
5.9. How amounts held in trust to be dealt with 91
5.10. Section 5.9(a) or (b) cases 92
5.11. Section 5.9(c) cases 92
5.12. Section 5.9(d) cases where monetary compensation 92
5.13. Section 5.9(d) cases where non-monetary
compensation 93
5.14. Section 5.9(d) cases where no compensation 93
page vii
Native Title (State Provisions) Bill 1999
Contents
5.15. Section 5.9(e) cases 94
5.16. Jurisdiction of the Commission under this Division 94
Part 6 -- Native Title Commission
Division 1 -- Commission established
6.1. Establishment of Commission 95
6.2. Functions of Commission 95
6.3. Requirements for fairness etc. to be observed 95
6.4. Membership of the Commission 95
6.5. Eligibility for appointment as Chief Commissioner 96
6.6. Appointment of member of NNTT 96
6.7. Qualifications for appointment 96
6.8. Ordinary members, notice of proposed appointment 97
6.9. Administrative functions of Chief Commissioner 98
6.10. Authorization of Chief Commissioner for purposes of
section 199F of the NTA 98
6.11. Delegation to members 98
6.12. Other provisions relating to members 98
Division 2 -- Staff of the Commission
6.13. Use of government staff etc. 99
6.14. Consultants 99
Division 3 -- Operation of Commission
Subdivision 1 -- How Commission to be constituted
6.15. General position 100
6.16. Constitution of Commission for the performance of
certain functions 100
6.17. Concurrent operations 101
Subdivision 2 -- Arrangement of business
6.18. Arrangement of business of the Commission 101
6.19. Unavailability of member 101
6.20. Completion of part-heard proceedings 102
Subdivision 3 -- Hearings
6.21. Commission to hold hearings 102
6.22. Commission may determine whether matters are to be
grouped together 102
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Native Title (State Provisions) Bill 1999
Contents
6.23. Opportunity to make submissions 103
6.24. Questions to be decided by majority 103
6.25. Representation before Commission 103
6.26. Participation by telephone, etc. 103
6.27. Hearings normally to be public 103
Subdivision 4 -- Evidence and information
6.28. Evidence and findings of other bodies 104
6.29. Commission may prohibit disclosure of evidence 104
6.30. Power of Commission to summon 105
6.31. Power of Commission to take evidence 105
6.32. Power of the Commission to require answers 105
6.33. Commission may authorize another person to take
evidence 106
6.34. Interpreters 106
6.35. Retention and copying of documents 106
Subdivision 5 -- Recommendations and
determinations
6.36. Recommendations and determinations 106
Division 4 -- Financial provisions
6.37. Funds for carrying out this Act 107
6.38. Native Title Commission Account 107
6.39. Application of Financial Administration and Audit
Act 1985 108
Division 5 -- General
6.40. Communication of information in certain cases 108
6.41. Reference of question of law to the Supreme Court 108
6.42. Offences 109
6.43. Disclosure of interests 110
6.44. Protection of members and persons appearing before
the Commission 110
6.45. Confidentiality 111
Part 7 -- Miscellaneous
7.1. Regulations 113
7.2. Review of Act 113
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Native Title (State Provisions) Bill 1999
Contents
7.3. Consequential amendments 113
7.4. Transitional provisions 113
Schedule 1 -- Provisions relating to
members of the Commission
1. Term of office 115
2. Remuneration, allowances and conditions of service 115
3. Oath or affirmation of office 115
4. Leave of absence 116
5. Resignation 116
6. Termination of appointment of NNTT member 116
7. Termination of appointment of member for
bankruptcy etc. 116
8. Suspension by Governor and termination 116
9. Termination on address of both Houses of Parliament 117
Schedule 2 -- Consequential amendments
Division 1 -- Acts Amendment (Land Administration,
Mining and Petroleum) Act 1998
1. The Act amended 118
2. Section 2 amended 118
3. Sections 4 and 7 repealed 118
Division 2 -- Constitution Acts Amendment Act 1899
4. Schedule V amended 118
Division 3 -- Financial Administration and Audit
Act 1985
5. Schedule 1 amended 119
Division 4 -- Land Administration Act 1997
6. The Act amended 119
7. Section 6A inserted 119
8. Section 151 amended 120
9. Section 152A inserted 121
10 . Section 153 amended 121
11 . Section 154 amended 122
12 . Section 156 amended 122
13 . Section 157 amended 123
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Native Title (State Provisions) Bill 1999
Contents
14 . Section 158 repealed 123
15 . Section 162 amended 123
16 . Section 163 amended 123
17 . Section 170 amended 124
18 . Section 175 amended 124
19 . Section 176 amended 124
20 . Section 182 amended 124
21 . Section 183 amended 125
22 . Section 184 amended 125
23 . Section 185 amended 125
24 . Section 186 amended 125
25 . Section 207 amended 126
26 . Section 212 amended 126
27 . Section 214 amended 126
28 . Section 216 amended 127
29 . Section 217 amended 127
30 . Section 221 amended 128
31 . Section 223 amended 128
32 . Section 224 amended 129
33 . Section 241 amended 129
Division 5 -- Mining Act 1978
34 . The Act amended 130
35 . Section 19 amended 130
36 . Section 39A inserted 131
37 . Section 49 amended 131
38 . Section 56 amended 132
39 . Section 56AA inserted 132
40 . Section 67 amended 133
41 . Section 70AA inserted 133
42 . Section 70L amended 134
43 . Section 70O inserted 134
44 . Section 75 amended 135
45 . Section 85C inserted 135
46 . Section 90A inserted 136
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Native Title (State Provisions) Bill 1999
Contents
Division 6 -- Parliamentary Commissioner Act 1971
47 . Schedule 1 amended 136
Division 7 -- Petroleum Act 1967
48 . The Act amended 137
49 . Section 5 amended 137
50 . Section 11 amended 137
51 . Section 28B inserted 138
52 . Section 48AA inserted 138
53 . Section 48L inserted 139
54 . Section 105 amended 139
55 . Section 106 amended 139
56 . Section 116 amended 140
Division 8 -- Petroleum Pipelines Act 1969
57 . The Act amended 140
58 . Section 10A inserted 140
59 . Section 19 amended 141
Schedule 3 -- Transitional provisions
Division 1 -- Existing applications for mining
tenements
1. Definition 142
2. Regulations may modify certain provisions 142
3. Programme for dealing with existing mining
applications 142
Division 2 -- Matters in progress under
section 24MD(6B) of the NTA
4. Definition 143
5. Regulations may make transitional provisions 143
Defined terms in this Act
Defined terms in the NTA
page xii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Native Title (State Provisions) Bill 1999
A Bill for
An Act to make --
· alternative provisions to those contained in Part 2
Division 3 Subdivision P of the Native Title Act 1993 of the
Commonwealth, in accordance with sections 43 and 43A
of that Act;
· provisions that are supplementary to those in
section 24MD(6B) of that Act; and
· provision for delegations in respect of the State under
section 199F 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 1999
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 1999.
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 Part 4, Divisions 1, 2 and 3 of Part 5, and Part
6 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 2, other than section 2.2, comes into operation on the day
("the Part 2 commencement day") on which a determination
under section 43A of the NTA in relation to that Part comes into
15 force.
(4) Part 3, other than section 3.1, comes into operation on the day
("the Part 3 commencement day") on which a determination
under section 43 of the NTA in relation to that Part comes into
force.
20 (5) Division 4 of Part 5 comes into operation on the Part 3
commencement day.
(6) Section 7.3 comes into operation on --
(a) the Part 2 commencement day;
(b) the Part 3 commencement day; or
25 (c) the day on which Part 4 commences,
whichever is the earliest or, if those days are the same day, on
that day.
page 2
Native Title (State Provisions) Bill 1999
Preliminary Part 1
s. 1.3
(7) The Minister is to cause notice of each of the Part 2
commencement day and the Part 3 commencement day to be
published in the Gazette as soon as it is reasonably practicable
for the Minister to do so.
5 1.3. Objects
The objects of this Act are those set out in --
(a) sections 2.4 and 3.3 (which relate to State alternative
provisions for the purposes of sections 43 and 43A of
the NTA);
10 (b) section 4.1 (which relates to State provisions
supplementary to section 24MD(6B) of the NTA); and
(c) section 6.10 (which relates to the delegation of powers
to the Chief Commissioner under section 199F of the
NTA).
15 1.4. Act binds the Crown
This Act binds the Crown --
(a) in right of Western Australia; and
(b) so far as the legislative power of the Parliament permits,
in all its other capacities.
20 1.5. Interpretation
(1) In this Act the Native Title Act 1993 of the Commonwealth is
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 --
25 (a) this Act gives it another meaning; or
(b) the contrary intention appears in some other way.
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.
page 3
Native Title (State Provisions) Bill 1999
Part 1 Preliminary
s. 1.5
(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.
(4) In this Act, unless the contrary intention appears --
5 "Chief Commissioner" means the person appointed as such
under section 6.4(2);
"closing day", in relation to a Part 2 act, a Part 3 act or a Part 4
act, means --
(a) the day fixed under section 2.11, 3.9 or 4.7 for the
10 lodgment of objections to the doing of the act; or
(b) the later day fixed under section 2.18(2), 3.17(2) or
4.13(2) for that purpose,
as the case may require;
"Commission" means the body established by section 6.1;
15 "consultation parties" has the meaning given by section 2.22
or 4.17, as the case may require;
"Government party" means the person who has power to do,
on behalf of the State, an act of the kind referred to in
section 2.5, 3.4 or 4.2, as the case may require;
20 "member" means a member of the Commission and includes
the Chief Commissioner;
"negotiation parties" has the meaning given by section 3.21;
"objector" means a person who has made an objection under
section 2.16, 3.15 or 4.11, as the case may require, that has
25 not been withdrawn or dismissed;
"ordinary member" means a member of the Commission other
than the Chief Commissioner;
"Part 2 act" has the meaning given by section 2.5;
"Part 3 act" has the meaning given by section 3.4 and includes
30 an act to which section 2.7 applies;
page 4
Native Title (State Provisions) Bill 1999
Preliminary Part 1
s. 1.5
"Part 4 act" has the meaning given by section 4.2;
"proponent" means a person who is a proponent under
section 2.9, 2.10, 3.7, 3.8, 4.5 or 4.6, as the case may
require;
5 "recommendation" means a recommendation of the
Commission under section 2.32 or 4.27, as the case may
require;
"registered native title rights and interests" means --
(a) where the person to whom the expression refers is a
10 registered native title claimant, the native title rights
and interests described in the relevant entry on the
Register of Native Title Claims; and
(b) where the person to whom the expression refers is a
registered native title body corporate, the native title
15 rights and interests described in the relevant entry on
the National Native Title Register;
"relevant land" --
(a) in Parts 2 and 4, means the land or waters to which
the Part 2 act or the Part 4 act concerned relates;
20 (b) in Part 3, means the land or waters that would be
affected by the Part 3 act concerned if it were done;
and
(c) in section 5.2(1), has the meaning specified in
paragraph (a) or (b) that is appropriate to the act
25 concerned;
"responsible Minister", in relation to a Part 2 act, a Part 3 act
or a Part 4 act, means the Minister responsible for the
administration of the Act under which the act would be
done.
30 (5) To avoid doubt it is declared that references in this Act to
"written law" are to a written law of the State.
page 5
Native Title (State Provisions) Bill 1999
Part 1 Preliminary
s. 1.6
(6) Notes in this Act are provided to assist understanding and do not
form part of the Act.
1.6. Performance of certain functions on behalf of Minister
(1) Where a Government party is a Minister of the Crown the
5 consultation or negotiation functions of the Government party
under Part 2, 3, or 4 may be performed on behalf of the
Government party by any official authorized by the Government
party for that purpose, whether generally or for any particular
case.
10 (2) Nothing in this Act is to be read as preventing the exercise by a
Government party of a power of delegation conferred by a
written law.
1.7. Replacement of person as objector etc.
(1) If --
15 (a) a person becomes a registered native title claimant
because the person replaces another person as the
applicant in relation to a native title determination
application under section 61 of the NTA; and
(b) the other person is an objector, a consultation party or a
20 negotiation party,
the first-mentioned person also replaces the other person in his
or her capacity referred to in paragraph (b).
(2) If --
(a) a registered native title claimant in relation to a
25 determination application under section 61 of the NTA
is an objector, a consultation party or a negotiation party
in relation to an act; and
page 6
Native Title (State Provisions) Bill 1999
Preliminary Part 1
s. 1.8
(b) as a result of a determination of an application under
that section a body corporate becomes a registered
native title body corporate in relation to the relevant
land,
5 the registered native title body corporate replaces the registered
native title claimant as the objector, consultation party or
negotiation party in relation to the act.
1.8. Objector ceasing to be a registered native title claimant
If a person who has lodged an objection under
10 section 2.16(1)(b), 3.15(1)(b) or 4.11(1)(b) ceases to be a
registered native title claimant, the person also ceases to be an
objector, a consultation party or a negotiation party, as the case
may be.
page 7
Native Title (State Provisions) Bill 1999
Part 2 Consultation procedures for alternative provision areas
Division 1 Preliminary
s. 2.1
Part 2 -- Consultation procedures for alternative
provision areas
Division 1 -- Preliminary
2.1. 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 all 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 8
Native Title (State Provisions) Bill 1999
Consultation procedures for alternative provision areas Part 2
Preliminary Division 1
s. 2.2
2.2. Request for determination under section 43A of the NTA
The State Minister may, on behalf of the State, request the
Commonwealth Minister to make a determination under
section 43A of the NTA that --
5 (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.
2.3. Transitional provisions
The regulations may make transitional provisions, so far as the
10 legislative power of the Parliament permits, that are necessary
or expedient to be made in connection with the amendment or
revocation of a determination referred to in section 2.2.
2.4. Object of this Part
The object of this Part is to make provisions that --
15 (a) are alternative to those contained in Part 2 Division 3
Subdivision P of the NTA in relation to acts to which
that Subdivision applies that are attributable to the State;
and
(b) are permitted by section 43A(1) of the NTA to have
20 effect instead of Subdivision P while a determination
referred to in section 2.2 is in force,
in relation to an area of land or waters that is an alternative
provision area.
Note: Part 2 Division 3 Subdivision P of the NTA contains right to negotiate procedures in
25 relation to some future acts. For an overview of that Subdivision, see section 25 of the
NTA.
page 9
Native Title (State Provisions) Bill 1999
Part 2 Consultation procedures for alternative provision areas
Division 2 Relevant future acts and their validity
s. 2.5
Division 2 -- Relevant future acts and their validity
2.5. Acts to which this Part applies
(1) This Part applies to a future act ("a Part 2 act") done by the
State that --
5 (a) is referred to in --
(i) section 26(1A)(a) and (c) of the NTA; or
(ii) section 26(1)(a) and (c) of the NTA;
(b) is not referred to in 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 2.7.
2.6. Circumstances in which act is not valid
25 (1) A Part 2 act is not valid 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.
page 10
Native Title (State Provisions) Bill 1999
Consultation procedures for alternative provision areas Part 2
Relevant future acts and their validity Division 2
s. 2.6
(2) The requirements are --
(a) no objection is lodged under section 2.16 before the
close of business on the last day for the lodgment of
objections;
5 (b) after the last day for the lodgment of objections, but
immediately before the act is done, there is no --
(i) registered native title body corporate; or
(ii) registered native title claimant,
in relation to any part of the relevant land;
10 (c) all objections lodged under section 2.16 before the close
of business on the last day for the lodgment of
objections are --
(i) withdrawn under section 2.25; or
(ii) dismissed under section 2.29;
15 (d) an agreement of the kind described in section 2.26 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 2.38; and
(ii) is no longer capable of being overruled --
(I) because of section 2.38(2); or
(II) because the responsible Minister has
25 given an instrument to the Commission
under section 2.43;
(f) a recommendation that the act not be done is overruled
under section 2.38; or
(g) a recommendation --
30 (i) that the act be done; or
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Division 2 Relevant future acts and their validity
s. 2.7
(ii) that the act be done subject to conditions being
complied with,
is overruled under section 2.38 and a determination is
made under that section that the act may be done subject
5 to conditions being complied with.
(3) In subsection (2) --
"close of business" means the close of business of the
Government party as specified in accordance with
section 2.13(2)(f);
10 "last day for the lodgment of objections" --
(a) in relation to a person who has filed an application in
terms of section 2.18(3)(a) in relation to any part of
the relevant land (a "pending application"), means
the day that is one month after the closing day; and
15 (b) in relation to any other person, or if at the closing day
there is no pending application, means the closing
day.
2.7. Part 3 may be applied to a Part 2 act
The Government party may, on the application of a person who
20 has applied for, or made a request or submission for, the doing
of an act that would otherwise come within section 2.5,
determine that Part 2 is not to apply to the act but that it is to be
treated instead as a Part 3 act.
2.8. Other statutory requirements not affected
25 Nothing in section 2.6, or in an agreement, recommendation or
determination under this Part, authorizes the Government party
to do a Part 2 act without complying with any requirements of
another written law that apply to the doing of the act.
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Notices and objections Division 3
s. 2.9
Division 3 -- Notices and objections
2.9. Proponent where act relates to mining
Where the Part 2 act, if done, would --
(a) create or vary a right to mine; or
5 (b) renew, re-grant, remake 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.
2.10. Identification of proponents in other cases
10 (1) This section applies where the Part 2 act is not covered by
section 2.9.
(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
15 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).
(4) The Government party must give notice in writing to each
20 proponent of --
(a) a determination under subsection (2); and
(b) an amendment of a determination,
relating to that proponent.
(5) If there is any other consultation party in relation to the act at
25 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.
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Division 3 Notices and objections
s. 2.11
2.11. Closing day for objections
(1) The Government party is to fix, for every Part 2 act, a closing
day for the lodgment of objections to the doing of the act.
(2) The Government party may fix a later closing day for the
5 lodgment of objections to the doing of a Part 2 act if the
Government party is satisfied that it has not been reasonably
practicable for section 2.13(1) to be complied with in respect of
the act.
2.12. Notification of acts
10 Before a Part 2 act is done notice in writing of the act must be
given to --
(a) any registered native title body corporate in relation to
any of the relevant land;
(b) any registered native title claimant in relation to any of
15 the relevant land;
(c) any representative body for an area that includes any of
the relevant land; and
(d) the Native Title Registrar.
2.13. Further provision as to notices
20 (1) The notices required by section 2.12 in respect of a Part 2 act
must be given at least 3 months before the closing day.
(2) Every notice must show --
(a) a clear description of the land or waters to which the act
relates;
25 (b) a description of the nature of the act;
(c) the title of the Government party who --
(i) would do the act; and
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Notices and objections Division 3
s. 2.14
(ii) will receive objections;
(d) the address at which objections may be lodged and the
postal address to which they may be sent;
(e) the closing day;
5 (f) the time of close of business of the Government party on
the closing day;
(g) the name and address of any person who is a proponent
under section 2.9 or is determined to be a proponent
under section 2.10(2);
10 (h) how further information about the act can be obtained;
and
(i) any other information that is prescribed for the purposes
of section 2.15(1)(a).
(3) Every notice must also contain a statement explaining how
15 section 2.18(3) operates to allow a person time --
(a) to become a registered native title claimant in relation to
the relevant land; and
(b) by so doing to become eligible in terms of
section 2.16(1)(b) to lodge an objection to the doing of
20 the act.
(4) The particulars referred to in subsection (2)(c), (d) and (f) are to
be as determined by the Government party.
2.14. Who gives notice
(1) The notices required by section 2.12 are to be given --
25 (a) by the Government party where the Part 2 act is a
compulsory acquisition that comes within
section 26(1)(c)(iii) of the NTA; or
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Part 2 Consultation procedures for alternative provision areas
Division 3 Notices and objections
s. 2.15
(b) in the case of any other kind of Part 2 act --
(i) by persons of a class prescribed by the
regulations in relation to an act of that kind; or
(ii) if no person is so prescribed at the time when the
5 notice is given, by the Government party.
(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.
2.15. Prescribed provisions about notice
10 (1) The regulations may make provision about the giving of notice
under this Division including about --
(a) the information that must be included in a notice; and
(b) how the requirement to give notice --
(i) may be satisfied either generally or in particular
15 types of cases; and
(ii) may be satisfied in conjunction with the giving
of notice under another written law that relates to
a Part 2 act.
(2) Regulations of the kind referred to in subsection (1)(b)(ii) may
20 be expressed to be made under section 7.1 and under powers
conferred by another written law.
2.16. Right to object to doing of act
(1) A person that is, in relation to any part of the relevant land --
(a) a registered native title body corporate; or
25 (b) subject to subsection (3), a registered native title
claimant,
may lodge an objection to the doing of a Part 2 act.
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Notices and objections Division 3
s. 2.17
(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.
2.17. 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 be likely to affect the objector's registered
native title rights and interests in relation to the relevant
15 land; and
(c) comply with any other requirements of the regulations
as to the form or content of objections.
2.18. Time limit
(1) An objection against a Part 2 act cannot be lodged after the
20 closing day.
(2) Where, on the application of a person made before the closing
day, the Commission is satisfied that exceptional circumstances
so require, the Commission may --
(a) fix a later closing day for the lodgment of objections to
25 the doing of the act; and
(b) give such directions as the Commission thinks
appropriate as to the giving of notice of the day so fixed.
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Division 3 Notices and objections
s. 2.19
(3) If --
(a) on or before the closing day for a Part 2 act, a person
files a native title determination application under
section 61 of the NTA; and
5 (b) within one month after the closing day the person
becomes a registered native title claimant,
in relation to any part of the relevant land, the person may,
despite subsection (1), lodge an objection to the doing of the act
within the period referred to in paragraph (b).
10 (4) A person who files an application referred to in subsection (3)
must, within 7 days of doing so, notify the Government party
and any proponent in writing of that fact.
2.19. Government party to notify the Commission of objections
(1) The Government party must notify --
15 (a) the Commission; and
(b) any proponent,
of the particulars of all objections against a Part 2 act lodged on
or before the closing day or in accordance with section 2.18(3).
(2) Notification under subsection (1) of an objection must be given
20 not later than 14 days after the lodgment of the objection.
2.20. Withdrawal of request etc. by proponent
(1) The proponent in relation to a Part 2 act may give notice in
writing to --
(a) the Commission;
25 (b) the other consultation parties (if any); and
(c) the Government party,
that the proponent's application, request or submission for the
doing of the act is withdrawn.
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Consultation procedures for alternative provision areas Part 2
Consultation and agreements Division 4
s. 2.21
(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
5 referred to in that subsection brings to an end any procedures
that have begun under this Part.
2.21. Withdrawal of proposal by Government party
(1) The application of section 2.20 extends to cases where --
(a) section 2.9 does not apply; and
10 (b) a proponent has not been determined under
section 2.10(2).
(2) In that event --
(a) a notice may be given by the Government party that the
act will not be done; and
15 (b) the provisions of section 2.20 apply with all necessary
changes.
Division 4 -- Consultation and agreements
2.22. Meaning of "consultation parties"
References in this Part to "consultation parties" in relation to a
20 Part 2 act are references to --
(a) each proponent under section 2.9 and each objector; or
(b) where section 2.9 does not apply --
(i) the Government party;
(ii) each objector; and
25 (iii) any person determined under section 2.10(2) to
be a proponent but only so long as the person
consents to being a consultation party.
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Native Title (State Provisions) Bill 1999
Part 2 Consultation procedures for alternative provision areas
Division 4 Consultation and agreements
s. 2.23
2.23. Consultation
(1) If a Part 2 act is a compulsory acquisition that comes within
section 26(1)(c)(iii) of the NTA, the consultation parties must
consult with each other in good faith about ways of minimizing
5 the impact of the act on registered native title rights and
interests in relation to the relevant land with a view to bringing
about the withdrawal of the objections.
(2) In the case of any other Part 2 act, the consultation parties must
consult with each other in good faith about ways of minimizing
10 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 relevant land; or
(b) the way in which any thing authorized by the act may be
done,
15 with a view to bringing about the withdrawal of the objections.
(3) The consultation parties for the time being may begin
consultations even though the closing day for the act concerned
has not arrived.
2.24. Involvement of Commission, including mediation
20 (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 2.23.
(2) The consultation parties must report to the Commission on
25 progress made in the consultations at such time or times as the
Commission may in writing direct.
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Native Title (State Provisions) Bill 1999
Consultation procedures for alternative provision areas Part 2
Recommendations of the Commission Division 5
s. 2.25
(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 in good faith as
5 required by section 2.23; and
(b) to bring about --
(i) a resolution of the differences between them on
the relevant matters mentioned in section 2.23; or
(ii) the withdrawal of the objections.
10 2.25. 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
objection by notice in writing given to the Commission.
(2) The Commission is to notify the consultation parties of any such
15 withdrawal.
2.26. Agreement made by parties
If at any time before a recommendation is made under
Division 5 the consultation parties make an agreement that
resolves the issues on which the objections were based, they
20 may give a copy of it to the Commission.
Division 5 -- Recommendations of the Commission
2.27. Commission may notify intention to hear
(1) The Commission may, after the consultation period for a Part 2
act has expired, give notice to the consultation parties that it
25 intends to hear and determine objections to the doing of the
act --
(a) if --
(i) all of the objections have not been withdrawn; or
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Native Title (State Provisions) Bill 1999
Part 2 Consultation procedures for alternative provision areas
Division 5 Recommendations of the Commission
s. 2.28
(ii) an agreement of the kind described in
section 2.26 has not been made between the
consultation parties and given to the Commission
under that section;
5 and
(b) if the Commission considers that any mediation
requested under section 2.24(1) has been completed.
(2) A notice under subsection (1) in respect of a Part 2 act may be
given by the Commission --
10 (a) of its own motion; or
(b) on the application of a consultation party.
(3) Before the Commission gives a notice under subsection (1) of
its own motion, it must give the consultation parties an
opportunity to inform it whether the making of an agreement of
15 the kind described in section 2.26 is imminent.
(4) The Commission must grant an application made under
subsection (2)(b) if the application complies with section 2.45
and is accompanied by the things required by section 2.46.
(5) Without limiting section 6.22, a notice under subsection (1) may
20 relate to more than one act and the objections to the doing of the
act.
(6) In this section --
"consultation period" means the period beginning on the
closing day and ending 4 months after that day.
25 2.28. Consultations may continue
Where the Commission --
(a) has given notice under section 2.27; but
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Native Title (State Provisions) Bill 1999
Consultation procedures for alternative provision areas Part 2
Recommendations of the Commission Division 5
s. 2.29
(b) has not made a recommendation,
in respect of a Part 2 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
5 based; and
(d) the withdrawal of the objections.
2.29. Dismissal of objections
(1) The Commission must dismiss an objection if --
(a) it is not made by a registered native title body corporate
10 or a registered native title claimant as required by
section 2.16(1); or
(b) none of the rights and interests claimed to be affected by
the doing of the act are registered native title rights and
interests of the objector.
15 (2) The Commission must notify an objector of the dismissal of his
or her objection.
2.30. Time for making recommendation
(1) Subject to section 2.31, the Commission must take all
reasonable steps to make a recommendation in respect of a
20 Part 2 act within the period of 4 months ("the allowed period")
starting when a notice under section 2.27 is given in respect of
the act.
(2) If it appears to the Commission that it will not make a
recommendation within the allowed period, the Commission
25 may before the end of the period ask the responsible Minister to
extend the period, and that Minister may comply with the
request.
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Native Title (State Provisions) Bill 1999
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Division 5 Recommendations of the Commission
s. 2.31
(3) An extended period may be further extended under
subsection (2).
2.31. No recommendation if agreement etc.
The Commission must not make a recommendation in respect of
5 a Part 2 act if --
(a) all of the objections to the doing of the act have been
withdrawn; or
(b) an agreement of the kind described in section 2.26 has
been made between the consultation parties and given to
10 the Commission under that section.
2.32. Making of recommendation
(1) Except where section 2.31 applies, the Commission must make
one of the following recommendations --
(a) that the act be done;
15 (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
20 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 --
25 (a) the amount of profits made;
(b) any income derived; or
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Native Title (State Provisions) Bill 1999
Consultation procedures for alternative provision areas Part 2
Recommendations of the Commission Division 5
s. 2.33
(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.
2.33. Criteria for making recommendations
5 (1) In making its recommendation in respect of any Part 2 act, the
Commission must --
(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
10 (b) unless it recommends that the act not be done, consider
ways in which that impact can be minimized.
(2) In addition, in making its recommendation in respect of a Part 2
act that is not a compulsory acquisition that comes within
section 26(1)(c)(iii) of the NTA, the Commission must consider
15 questions of --
(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
20 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
the objectors.
25 2.34. 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.
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Native Title (State Provisions) Bill 1999
Part 2 Consultation procedures for alternative provision areas
Division 5 Recommendations of the Commission
s. 2.35
(2) If there is any such issue, and all of the consultation parties
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
5 section 2.33, to the extent that the matters relate to that
issue.
2.35. Copy of recommendation to be given
The Commission must give a copy of any recommendation
under section 2.32 to the consultation parties and the
10 responsible Minister.
2.36. 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 2.38.
15 2.37. Effect of recommendation that specifies conditions
(1) A recommendation by the Commission that a Part 2 act may be
done subject to conditions being complied with by the
consultation parties has effect, if the act is done, as if the
conditions were terms of a contract among the consultation
20 parties.
(2) Subsection (1) is in addition to --
(a) the effect that the recommendation has under
section 2.36; and
(b) any condition that the Government party may impose in
25 relation to the act in order to give effect to the
recommendation.
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Native Title (State Provisions) Bill 1999
Consultation procedures for alternative provision areas Part 2
Overruling of recommendations Division 6
s. 2.38
(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.
Division 6 -- Overruling of recommendations
5 2.38. Responsible Minister may overrule a recommendation
(1) Subject to sections 2.40 and 2.41, the responsible Minister may,
by writing given to the Commission, make a determination in
accordance with section 2.39.
(2) A determination cannot be made by the responsible Minister in
10 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
consultation parties concerned.
2.39. Determinations that responsible Minister may make
15 (1) In the case of a recommendation under section 2.32(1)(a), the
responsible Minister may make a determination that the
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
20 specified conditions to be complied with by any of the
consultation parties.
(2) In the case of a recommendation under section 2.32(1)(b), the
responsible Minister may make a determination that the
recommendation is overruled and --
25 (a) that the act to which it relates must not be done;
(b) that the act to which it relates may be done; or
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Native Title (State Provisions) Bill 1999
Part 2 Consultation procedures for alternative provision areas
Division 6 Overruling of recommendations
s. 2.40
(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.
(3) In the case of a recommendation under section 2.32(1)(c), the
5 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
specified conditions to be complied with by any of the
10 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.
(5) In this section --
15 "specified" means specified in the determination.
2.40. Consultation before making of determination
(1) This section applies if the effect of the responsible Minister's
determination under section 2.38 is that the act may be done --
(a) unconditionally;
20 (b) subject to conditions being complied with; or
(c) subject to conditions being 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
25 determination under section 2.38 after he or she has --
(a) consulted the State Minister principally responsible for
indigenous affairs about --
(i) the Commission's recommendation; and
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Consultation procedures for alternative provision areas Part 2
Overruling of recommendations Division 6
s. 2.41
(ii) any determination that the responsible Minister
may make;
and
(b) taken into account any recommendation or advice made
5 or given by that Minister.
(3) Before the consultations referred to in subsection (2) are held,
the State Minister principally responsible for indigenous affairs
is to be given --
(a) by the Commission, any submission or other material
10 that was put before it in relation to the recommendation
in question; and
(b) by the responsible Minister, any submission or other
material that has been put before him or her for the
purposes of the determination in question.
15 (4) The duty imposed by subsection (3)(a) applies subject to any
direction given by the Commission under section 6.29.
2.41. Ground on which determination may be made
(1) The responsible Minister may only make a determination under
section 2.38 on the ground that it is in the interests of the State
20 to do so.
(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
25 (b) in the interests of the relevant region or locality in the
State.
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Division 6 Overruling of recommendations
s. 2.42
2.42. Conditions in determination
(1) A provision in a determination by the responsible Minister
under section 2.38 that a Part 2 act may be done subject to
conditions being complied with by any of the consultation
5 parties has effect, if the act is done, as if the conditions were
terms of a contract among the consultation parties.
(2) Subsection (1) is in addition to --
(a) the effect of the determination apart from this section;
and
10 (b) any condition that the Government party may impose in
relation to the act in order to give effect to the
determination.
(3) If an objector is a registered native title claimant, any other
person included in the native title claim group concerned is
15 taken to be a consultation party for the purposes only of this
section.
2.43. 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
20 any power conferred by section 2.38 in respect of a particular
recommendation.
(2) If an instrument is given to the Commission under
subsection (1) the responsible Minister --
(a) cannot revoke the instrument; and
25 (b) cannot exercise any power conferred by section 2.38 in
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).
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Native Title (State Provisions) Bill 1999
Consultation procedures for alternative provision areas Part 2
Applications Division 7
s. 2.44
Division 7 -- Applications
2.44. Definition
In this Division --
"application" means an application under section 2.27(2)(b).
5 2.45. 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
the form or content of applications.
10 2.46. Material and fees to accompany applications
An application must be accompanied by any prescribed
documents and any prescribed fee.
2.47. Application fee may be waived
The Chief Commissioner may waive payment of the whole or
15 part of a fee payable by a person under section 2.46 where --
(a) in the Chief Commissioner's opinion, payment of the
whole or part of the fee would cause financial hardship
to the person; or
(b) for any other reason the Chief Commissioner considers
20 it appropriate to do so.
Division 8 -- Judicial review
2.48. Application for review
(1) A consultation party in relation to a Part 2 act may apply to the
Supreme Court for a review of a decision to which this section
25 applies.
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Division 8 Judicial review
s. 2.49
(2) The decisions referred to are --
(a) a dismissal under section 2.29 of an objection to the
doing of the act;
(b) a recommendation of the Commission under
5 section 2.32(1)(a) or (b) in respect of the act; and
(c) a determination of the responsible Minister under
section 2.38(1) that the act --
(i) may be done; or
(ii) may be done subject to conditions.
10 2.49. Time limit for application
(1) An application for review must be made not later than 28 days
after the day on which --
(a) notice of the dismissal of the objection is given to the
applicant; or
15 (b) a copy of the determination is given to the applicant
under section 2.38(3),
as the case may be.
(2) In the case of a recommendation of the Commission, an
application for review must be made not later than 28 days
20 after --
(a) the day on which the applicant is notified under
section 2.43(3) that the responsible Minister has given
an instrument to the Commission under section 2.43; or
(b) the expiry of the period referred to in section 2.38(2),
25 whichever happens first.
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Native Title (State Provisions) Bill 1999
Consultation procedures for alternative provision areas Part 2
Judicial review Division 8
s. 2.50
2.50. Procedure
The manner of making the application and other matters relating
to the proceedings are to be as prescribed by rules of court.
2.51. Grounds on which application may be made
5 (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
(c) an order in the nature of a prerogative writ.
10 (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
such of the remedies referred to in subsection (1) as the Court
considers appropriate in the circumstances.
2.52. Powers of Court
15 On the making of an application for review the Court may grant
such relief as it considers appropriate in the circumstances,
including relief by way of any of the remedies referred to in
section 2.51(1).
2.53. Effect on other remedies
20 This Division displaces, in respect of a decision to which it
applies, the right of a consultation party to apply in other
proceedings for relief of a kind that is available under this
Division.
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 1 Preliminary
s. 3.1
Part 3 -- Right to negotiate procedures for areas not
covered by Part 2
Division 1 -- Preliminary
3.1. 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 3.2. 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 amendment or
revocation of a determination referred to in section 3.1.
15 3.3. Object of this Part
The object of this Part is to make provisions that --
(a) are alternative to those contained in Part 2 Division 3
Subdivision P of the NTA; and
(b) are permitted by section 43(1) of the NTA to have effect
20 instead of Subdivision P while a determination referred
to in section 3.1 is in force,
in relation to acts to which that Subdivision applies that are
attributable to the State.
Note: Part 2 Division 3 Subdivision P of the NTA contains right to negotiate procedures in
25 relation to some future acts. For an overview of that Subdivision, see section 25 of the
NTA.
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Relevant future acts and their validity Division 2
s. 3.4
Division 2 -- Relevant future acts and their validity
3.4. 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) is referred to in --
(i) section 26(1A)(a) and (c) of the NTA; or
(ii) section 26(1)(a) and (c) of the NTA;
(b) is not referred to in section 26(2) of the NTA; and
(c) subject to section 2.7, is not a Part 2 act.
10 (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
to consist of 2 separate acts --
15 (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.
3.5. Circumstances in which act is not valid
20 (1) A Part 3 act is not valid 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.
(2) The requirements are --
(a) no objection is lodged under section 3.15 before the
25 close of business on the last day of the objection period;
(b) after the objection period, but immediately before the
act is done, there is no --
(i) registered native title body corporate; or
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 2 Relevant future acts and their validity
s. 3.5
(ii) registered native title claimant,
in relation to any part of the relevant land;
(c) all objections lodged under section 3.15 before the close
of business on the last day of the objection period are --
5 (i) withdrawn under section 3.24; or
(ii) dismissed under section 3.41;
(d) an agreement of the kind mentioned in section 3.22(1)
is --
(i) made by the negotiation parties;
10 (ii) given to the Commission under section 3.25; and
(iii) accepted by the Commission under
section 3.26(2);
(e) a determination is made under section 3.29 that the act
may be done, or may be done subject to conditions
15 being complied with;
(f) a determination is made under section 3.44 that the act
may be done, or may be done subject to conditions
being complied with, and the determination --
(i) has not been overruled under section 3.51; and
20 (ii) is no longer capable of being overruled --
(I) because of section 3.51(2); or
(II) because the responsible Minister has
given an instrument to the Commission
under section 3.55;
25 (g) a determination that the act must not be done is declared
to be overruled under section 3.51; or
(h) a determination under section 3.44 --
(i) that the act may be done; or
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Right to negotiate procedures for areas not covered by Part 2 Part 3
Notices and objections Division 3
s. 3.6
(ii) that the act may be done subject to conditions
being complied with,
is overruled under section 3.51 and a declaration is made
under that section that the act may be done subject to
5 conditions being complied with.
(3) In subsection (2) --
"close of business" means the close of business of the
Government party as specified in accordance with
section 3.11(2)(f);
10 "objection period", in relation to a Part 3 act, means the period
beginning when any notice of the act is given under
section 3.10 and ending with the day that is one month after
the closing day in relation to the act.
(4) The term "objection period" is defined in subsection (3) to
15 extend beyond the closing day in relation to a Part 3 act to allow
for cases where section 3.17(3) applies, and the definition is not
to be read as in any way limiting the operation of
section 3.17(1).
3.6. Other statutory requirements not affected
20 Nothing in section 2.7 or 3.5, or in an agreement, determination
or declaration 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
25 3.7. Proponent where act relates to mining
Where the Part 3 act, if done, would --
(a) create or vary a right to mine; or
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 3 Notices and objections
s. 3.8
(b) renew, re-grant, remake 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 3.8. Identification of proponents in other cases
(1) This section applies where the Part 3 act is not covered by
section 3.7.
(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) any amendment of a determination,
relating to that proponent.
20 (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.
3.9. Closing day for objections
25 (1) The Government party is to fix, for every Part 3 act, a closing
day for the lodgment of objections to the doing of the act.
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Notices and objections Division 3
s. 3.10
(2) The Government party may fix a later closing day 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 3.11(1) to be complied with in respect of
5 the act.
3.10. Notification of acts
(1) Before a Part 3 act is done, public notice of the act must be
given by advertisement --
(a) in a newspaper circulating generally throughout the
10 State; and
(b) in a newspaper or magazine that --
(i) caters mainly or exclusively for the interests of
Aboriginal peoples;
(ii) circulates in the area that may be affected by the
15 act; and
(iii) is published at least once a month.
(2) Notice in writing of the act must also be given to --
(a) any registered native title body corporate in relation to
any of the relevant land;
20 (b) any registered native title claimant in relation to any of
the relevant land;
(c) any representative body for an area that includes any of
the relevant land; and
(d) the Native Title Registrar.
25 3.11. Further provision as to notices
(1) The notices required by section 3.10 in respect of a Part 3 act
must be given at least 3 months before the closing day.
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 3 Notices and objections
s. 3.11
(2) Every notice must show --
(a) a clear description of the land or waters to which the act
relates;
(b) a description of the nature of the act;
5 (c) the title of the Government party who --
(i) would do the act; and
(ii) will receive objections;
(d) the address at which objections may be lodged and the
postal address to which they may be sent;
10 (e) the closing day;
(f) the time of close of business of the Government party on
the closing day and on the day that is one month after
that day;
(g) the name and address of any person who is a proponent
15 under section 3.7 or is determined to be a proponent
under section 3.8(2);
(h) how further information about the act can be obtained;
and
(i) any other information that is prescribed for the purposes
20 of section 3.14(1)(a).
(3) Every notice must also contain a statement explaining how
section 3.17(3) operates to allow a person time --
(a) to become a registered native title claimant in relation to
the relevant land; and
25 (b) by so doing to become eligible in terms of
section 3.15(1)(b) to lodge an objection to the doing of
the act.
(4) The particulars referred to in subsection (2)(c), (d) and (f) are to
be as determined by the Government party.
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Notices and objections Division 3
s. 3.12
3.12. Notice may relate to 2 or more acts
One notice may relate to the doing of 2 or more Part 3 acts.
3.13. Who gives notice
(1) The notices required by section 3.10 are to be given --
5 (a) by the Government party where the Part 3 act is a
compulsory acquisition that comes within
section 26(1)(c)(iii) of the NTA; or
(b) in the case of any other kind of Part 3 act --
(i) by persons of a class prescribed by the
10 regulations in relation to an act of that kind; or
(ii) if no person is so prescribed at the time when the
notice is given, by the Government party.
(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
15 been given.
3.14. Prescribed provisions about notice
(1) The regulations may make provision about the giving of notice
under this Division including about --
(a) the information that must be included in a notice; and
20 (b) how the requirement to give notice --
(i) may be satisfied either generally or in particular
types of cases; and
(ii) may be satisfied in conjunction with the giving
of notice under another written law that relates to
25 a Part 3 act.
(2) Regulations of the kind referred to in subsection (1)(b)(ii) may
be expressed to be made under section 7.1 and under powers
conferred by another written law.
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 3 Notices and objections
s. 3.15
3.15. Right to object to doing of act
(1) A person that is, in relation to any part of the relevant land --
(a) a registered native title body corporate; or
(b) subject to subsection (2), a registered native title
5 claimant,
may lodge an objection to the doing of a Part 3 act.
(2) 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.
10 3.16. Requirements for objections
An objection must --
(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
15 act would be likely to 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 3.17. Time limit
(1) An objection to the doing of a Part 3 act cannot be lodged after
the closing day.
(2) Where, on the application of a person made before the closing
day, the Commission is satisfied that exceptional circumstances
25 so require, the Commission may --
(a) fix a later closing day for the lodgment of objections to
the doing of the act; and
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Notices and objections Division 3
s. 3.18
(b) give such directions as the Commission thinks
appropriate as to the giving of notice of the day so fixed.
(3) If --
(a) on or before the closing day for a Part 3 act, a person
5 files a native title determination application under
section 61 of the NTA; and
(b) within one month after the closing day the person
becomes a registered native title claimant,
in relation to any part of the relevant land, the person may,
10 despite subsection (1), lodge an objection to the doing of the act
within the period referred to in paragraph (b).
(4) A person who files an application referred to in subsection (3)
must, within 7 days of doing so, notify the Government party
and any proponent in writing of that fact.
15 3.18. Government party to notify the Commission of objections
(1) The Government party must notify --
(a) the Commission; and
(b) any proponent,
of the particulars of all objections lodged on or before the
20 closing day or in accordance with section 3.17(3).
(2) Notification under subsection (1) of an objection must be given
not later than 14 days after the lodgment of the objection.
3.19. Withdrawal of request etc. by proponent
(1) The proponent in relation to a Part 3 act may give notice in
25 writing to --
(a) the Commission;
(b) the other negotiation parties (if any); and
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 4 Negotiations and agreements
s. 3.20
(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
5 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.
10 3.20. Withdrawal of proposal by Government party
(1) The application of section 3.19 extends to cases where --
(a) section 3.7 does not apply; and
(b) a proponent has not been determined under section 3.8.
(2) In that event --
15 (a) a notice may be given by the Government party that the
act will not be done; and
(b) the provisions of section 3.19 apply with all necessary
changes.
Division 4 -- Negotiations and agreements
20 3.21. Meaning of "negotiation parties"
(1) References in this Part to "negotiation parties" in relation to a
Part 3 act are references --
(a) where section 3.7 applies, to --
(i) each proponent under that section;
25 (ii) each objector; and
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Negotiations and agreements Division 4
s. 3.22
(iii) to the extent provided for by subsection (3), the
Government party;
or
(b) where section 3.7 does not apply, to --
5 (i) the Government party;
(ii) each objector; and
(iii) any person determined under section 3.8(2) to be
a proponent but only so long as the person
consents to being a negotiation party.
10 (2) Where section 3.7 applies to a Part 3 act, a proponent under that
section or an objector may in writing --
(a) at any time request the Government party to be a
negotiation party; or
(b) request the Government party to be no longer a
15 negotiation party,
in relation to that act.
(3) So long as --
(a) a request by a proponent or objector under
subsection (2)(a) has effect; and
20 (b) there has been no request by the same proponent or
objector under subsection (2)(b),
the Government party is a negotiation party in relation to the act
concerned.
3.22. Negotiations
25 (1) The negotiation parties must negotiate in good faith with a view
to --
(a) the objections to the doing of the act being withdrawn;
or
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 4 Negotiations and agreements
s. 3.22
(b) obtaining the agreement of the objectors to --
(i) the doing of the act; or
(ii) the doing of the act subject to conditions to be
complied with by any of the negotiation parties.
5 (2) For the purposes of subsection (1), the other negotiation parties
must give the objectors an opportunity to state, either orally or
in writing, their views regarding the doing of the act.
(3) Without limiting the scope of any negotiations, they may, if
relevant, include the possibility of there being a condition that
10 has the effect that the objectors are to be entitled to payments
worked out by reference to --
(a) the amount of profits made;
(b) any income derived; or
(c) any things produced,
15 by any other negotiation party as a result of doing anything in
relation to the relevant land after the act is done.
(4) Without limiting the scope of any negotiations, the nature and
extent of the following may be taken into account --
(a) existing rights and interests in relation to the relevant
20 land that are not registered native title rights and
interests;
(b) existing use of the relevant land by persons other than
the objectors; and
(c) the practical effect of the exercise of --
25 (i) those existing rights and interests; and
(ii) that existing use,
on the exercise of any registered native title rights and
interests in relation to the relevant land.
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Negotiations and agreements Division 4
s. 3.23
(5) The fact that a negotiation party refuses or fails to negotiate as
mentioned in subsection (1) about matters unrelated to the effect
of the act on the registered native title rights and interests of the
objectors, does not mean that the negotiation party has not
5 negotiated in good faith for the purposes of that subsection.
(6) The negotiation parties for the time being may begin
negotiations even though the closing day in relation to the act
concerned has not arrived.
3.23. Involvement of Commission, including mediation
10 (1) If any of the negotiation parties requests the Commission to do
so, the Commission must mediate among the parties to assist in
resolving the differences between them.
(2) The negotiation parties must report to the Commission on
progress made in the negotiations at such time or times as the
15 Commission may in writing direct.
(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 to have
the parties negotiate as required by section 3.22(1).
20 3.24. Withdrawal of objection
(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
25 withdrawal.
3.25. Agreement made by parties
If at any time before any determination is made under
Division 5 the negotiation parties make an agreement of the
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 4 Negotiations and agreements
s. 3.26
kind mentioned in section 3.22(1), they may give a copy of it to
the Commission.
3.26. 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 3.25 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.
3.27. Effect of conditional agreement
(1) An agreement that a Part 3 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 3.25 and is accepted by the Commission
under section 3.26(2); and
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Determinations Division 5
s. 3.28
(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 --
5 (a) any other effect that the agreement may have apart from
this section; and
(b) any condition that the Government party may impose in
relation to the act in order to give effect to the
agreement.
10 (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.
Division 5 -- Determinations
15 Subdivision 1 -- Ministerial determination where Commission
determination unreasonably delayed
3.28. Responsible Minister may give Commission notice as to
urgency
(1) At any time later than 4 months after the Commission has given
20 a notice under section 3.39 in respect of a Part 3 act and before
either --
(a) an agreement of the kind mentioned in section 3.22(1)
has been --
(i) made by the negotiation parties;
25 (ii) given to the Commission under section 3.25; and
(iii) accepted by the Commission under
section 3.26(2);
or
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 5 Determinations
s. 3.29
(b) the Commission has made a determination under
section 3.44,
the responsible Minister may give a written notice to the
Commission requesting it to make such a determination within
5 the period specified in the notice.
(2) The period must end at a time later than 6 months after the
notice under section 3.39 was given.
3.29. Responsible Minister may make determination
(1) The responsible Minister may, subject to section 3.30, make a
10 determination in respect of a Part 3 act if --
(a) the Commission has not made a determination in respect
of the act within the period specified in a notice under
section 3.28;
(b) all objections to the doing of the act lodged under
15 section 3.15 have not been --
(i) withdrawn under section 3.24; or
(ii) dismissed under section 3.41;
(c) no agreement of the kind mentioned in section 3.22(1)
has been --
20 (i) made in relation to the act;
(ii) given to the Commission under section 3.25; and
(iii) accepted by the Commission under
section 3.26(2);
and
25 (d) the responsible Minister has complied with the
requirements of sections 3.31, 3.32 and 3.33.
(2) The determinations that the responsible Minister may make
are --
(a) a determination that the act may be done;
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Determinations Division 5
s. 3.30
(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.
5 (3) A determination must be made by the responsible Minister
personally.
3.30. Grounds for making determination
(1) The responsible Minister may only make a determination under
section 3.29 if he or she considers that --
10 (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
determination at the time.
15 (2) Subsection (1) does not prevent the responsible Minister from
having regard to other matters in deciding whether to make a
determination.
3.31. Consultation with Commonwealth Minister
The responsible Minister may only make a determination of the
20 kind described in section 3.29(2)(a) or (c) after he or she has
consulted the Commonwealth Minister about the determination.
3.32. Notice and submissions etc.
(1) Before making a determination under section 3.29, the responsible
Minister must give notice in accordance with this section.
25 (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 --
(a) the Minister; and
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Division 5 Determinations
s. 3.32
(b) each negotiation party,
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 3.44 in respect
5 of the act concerned.
(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
10 the Minister any submission or other material that the
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
15 the other negotiation parties a copy of the submission or
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
20 (ii) the Commission,
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 --
25 (a) be the same in all of the notices given under the
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 --
30 (i) will have been received by; or
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Determinations Division 5
s. 3.33
(ii) will otherwise have come to the attention of,
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
5 before the responsible Minister makes the determination.
3.33. 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
10 the negotiation parties in accordance with
subsection (3) of section 3.32, 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
15 (iii) any consultations with the Commonwealth
Minister under section 3.31;
and
(b) may, but need not, take into account any other matter or
thing.
20 3.34. Minister's power not limited
The fact that no submission or other material of the kind
mentioned in section 3.32 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.
25 3.35. No duty to make determination
(1) The responsible Minister does not have a duty to make a
determination under section 3.29.
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Division 5 Determinations
s. 3.36
(2) This is so despite --
(a) the giving of any notice by the Minister;
(b) the giving of any submission or other material to the
Minister;
5 (c) any request by a negotiation party for the responsible
Minister to make the determination; and
(d) any other circumstance.
3.36. Conditions to have contractual effect
(1) Any provision in a determination under section 3.29 that the act
10 may be done subject to conditions being complied with by any
of the negotiation parties 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 --
15 (a) the effect that the determination has apart from this
section; and
(b) any condition that the Government party may impose in
relation to the act in order to give effect to the
determination.
20 (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.
3.37. Copy of determination to be given
25 The responsible Minister must give a copy of any determination
under section 3.29 to the negotiation parties and the
Commission.
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Determinations Division 5
s. 3.38
3.38. Copy of determination to be laid before Parliament
(1) The responsible Minister must cause a copy of a determination
under section 3.29, together with reasons for the determination,
to be laid before each House of Parliament.
5 (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
House of Parliament, within 15 sitting days of that House after
the determination is made.
Subdivision 2 -- Determination by Commission
10 3.39. Commission may notify intention to hear
(1) The Commission may give notice to the negotiation parties that
it intends to hear and determine objections to the doing of a
Part 3 act --
(a) if --
15 (i) an agreement of the kind mentioned in
section 3.22(1) has not been --
(I) made by the negotiation parties;
(II) given to the Commission under
section 3.25; and
20 (III) accepted by the Commission under
section 3.26(2);
or
(ii) all objections to the doing of the act have not
been withdrawn;
25 and
(b) if the Commission considers that any mediation
requested under section 3.23(1) has been completed.
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 5 Determinations
s. 3.39
(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 expiry of the
negotiation period; or
5 (b) on the application of a negotiation party made after the
expiry of that period.
(3) Before the Commission gives a notice under subsection (1) of
its own motion, it must give the negotiation parties an
opportunity to inform it whether the making of an agreement of
10 the kind mentioned in section 3.22(1) is imminent.
(4) The Commission must grant an application made under
subsection (2)(b) if --
(a) a determination has not been made under section 3.29;
(b) the application --
15 (i) complies with section 3.57; and
(ii) is accompanied by the things required by
section 3.58;
and
(c) the applicant has not been shown to be at fault.
20 (5) For the purposes of subsection (4)(c), an applicant is shown to
be at fault if another negotiation party alleges to the
Commission, and proves to its satisfaction, that the applicant did
not negotiate in good faith as required by section 3.22(1).
(6) Without limiting section 6.22, a notice under subsection (1) may
25 relate to more than one act and the objections to the doing of the
act.
(7) In this section --
"negotiation period" means the period beginning on the
closing day and ending 4 months after that day.
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Determinations Division 5
s. 3.40
3.40. Negotiations may continue
Where the Commission --
(a) has given notice under section 3.39; but
(b) has not made a determination,
5 in respect of a Part 3 act, the negotiation parties may continue to
negotiate with a view to --
(c) bringing about an agreement of the kind mentioned in
section 3.22(1); or
(d) the withdrawal of the objections.
10 3.41. Dismissal of objections
(1) 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
section 3.15; or
15 (b) none of the rights and interests claimed to be affected by
the doing of the act are registered native title rights and
interests of the objector.
(2) The Commission must notify an objector of the dismissal of his
or her objection.
20 3.42. Time for making determination
(1) The Commission must take all reasonable steps to make a
determination under section 3.44 in respect of a Part 3 act
within the period of 6 months ("the allowed period") starting
when a notice under section 3.39 is given in respect of the act.
25 (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 request.
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 5 Determinations
s. 3.43
(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.
5 (5) Nothing in subsection (2) or (3) affects the operation of
Subdivision 1.
3.43. No determination if agreement etc.
The Commission must not make a determination in respect of a
Part 3 act if --
10 (a) all of the objections to the doing of the act have been
withdrawn;
(b) an agreement of the kind mentioned in section 3.22(1)
has been --
(i) made by the negotiation parties;
15 (ii) given to the Commission under section 3.25; and
(iii) accepted by the Commission under
section 3.26(2);
or
(c) a determination has been made under section 3.29.
20 3.44. Making of determination
(1) Subject to section 3.43, the Commission must make one of the
following determinations --
(a) a determination that the act may be done;
(b) a determination that the act may be done subject to
25 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.
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Determinations Division 5
s. 3.45
(2) The Commission may specify conditions under
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.
5 (3) The Commission must not determine a condition under
subsection (1)(b) that has the effect that an objector is to be
entitled to payments worked out by reference to --
(a) the amount of profits made;
(b) any income derived; or
10 (c) any things produced,
by any other negotiation party as a result of doing anything in
relation to the relevant land after the act is done.
3.45. Criteria for making determinations
(1) In making its determination in respect of a Part 3 act, the
15 Commission must take into account the following --
(a) the effect of the act on --
(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
20 the objectors;
(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
25 rites, ceremonies or other activities of cultural
significance on the relevant land in accordance
with their traditions; and
(v) any area or site on the relevant land of particular
significance to the objectors in accordance with
30 their traditions;
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 5 Determinations
s. 3.46
(b) the interests, proposals, opinions or wishes of the
objectors in relation to the management, use or control
of the relevant land in relation to which there are
registered native title rights and interests of the objectors
5 that will 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
10 (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 3 act as mentioned
15 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
20 the objectors.
(3) Taking into account the effect of a Part 3 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.
25 3.46. 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.
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Determinations Division 5
s. 3.47
(2) If there is any such issue, and all of the negotiation parties
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
5 section 3.45 to the extent that the matters relate to that
issue.
3.47. 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 --
10 (a) is not reasonably capable of being determined when the
determination is made; and
(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.
15 (2) If --
(a) the manner specified is arbitration by some person or
body other than the Commission; and
(b) the negotiation parties do not agree about the manner in
which the arbitration is to take place,
20 the Commission must determine the matter at an appropriate
time.
3.48. No reopening of certain issues previously decided
(1) If --
(a) the Commission is making a determination in respect of
25 a Part 3 act consisting of the creation of a right to mine
in relation to an area; and
(b) an agreement or a determination involving the same
negotiation parties was previously made in respect of a
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 5 Determinations
s. 3.49
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
proceedings before the Commission or an arbitral body,
5 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
section 3.22(1) that is given to the Commission under
10 section 3.25 and accepted by it under section 3.26(2);
"determination" means a determination by --
(a) the Commission under this Part; or
(b) an arbitral body under the relevant provisions of the
NTA;
15 "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
Schedule 1 to the Native Title Amendment Act 1998
20 of the Commonwealth; and
(b) Subdivision P of that Division.
3.49. Copy of determination to be given
The Commission must give a copy of any determination under
section 3.44 to the negotiation parties and the responsible
25 Minister.
3.50. Effect of conditional determination
(1) A determination by the Commission that a Part 3 act may be
done subject to conditions being complied with by the
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Overruling of Commission's determination Division 6
s. 3.51
negotiation parties 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 --
5 (a) the effect that the determination has apart from this
section; and
(b) any condition that the Government party may impose
in relation to the act in order to give effect to the
determination.
10 (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.
Division 6 -- Overruling of Commission's determination
15 3.51. Responsible Minister may overrule
(1) Subject to section 3.53, the responsible Minister may, by
writing given to the Commission, make a declaration in
accordance with section 3.52.
(2) A declaration cannot be made by the responsible Minister in
20 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
negotiation parties concerned.
3.52. Declarations that responsible Minister may make
25 (1) In the case of a determination under section 3.44(1)(a), the
responsible Minister may make a declaration that the
determination is overruled and a declaration either --
(a) that the act to which it relates must not be done; or
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 6 Overruling of Commission's determination
s. 3.53
(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 3.44(1)(b), the
5 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
10 specified conditions to be complied with by any of the
negotiation parties.
(3) In the case of a determination under section 3.44(1)(c), the
responsible Minister may make a declaration that the
determination is overruled and a declaration either --
15 (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.
(4) The responsible Minister may only specify conditions under this
20 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 declaration.
3.53. Grounds on which declaration may be made
25 The responsible Minister may only make a declaration under
section 3.51 on the grounds that it is in the interests of the State,
or in the national interest, to do so.
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Native Title (State Provisions) Bill 1999
Right to negotiate procedures for areas not covered by Part 2 Part 3
Overruling of Commission's determination Division 6
s. 3.54
3.54. Conditions in declaration
(1) A provision in a declaration by the responsible Minister under
section 3.51 that a Part 3 act may be done subject to conditions
being complied with by any of the negotiation parties has effect,
5 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 --
(a) effect that the declaration has apart from this section;
and
10 (b) any condition that the Government party may impose in
relation to the act in order to give effect to the
declaration.
(3) If an objector is a registered native title claimant, any other
person included in the native title claim group concerned is
15 taken to be a negotiation party for the purposes only of this
section.
3.55. 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
20 any power conferred by section 3.51 in respect of a particular
determination.
(2) If an instrument is given to the Commission under
subsection (1) the responsible Minister --
(a) cannot revoke the instrument; and
25 (b) cannot exercise any power conferred by section 3.51 in
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).
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Native Title (State Provisions) Bill 1999
Part 3 Right to negotiate procedures for areas not covered by Part 2
Division 7 Applications
s. 3.56
Division 7 -- Applications
3.56. Definition
In this Division --
"application" means an application under section 3.39(2)(b).
5 3.57. 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
the form or content of applications.
10 3.58. Material and fees to accompany applications
An application must be accompanied by any prescribed
documents and any prescribed fee.
3.59. Application fee may be waived
The Chief Commissioner may waive payment of the whole or
15 part of a fee payable by a person under section 3.58 where --
(a) in the Chief Commissioner's opinion, payment of the
whole or part of the fee would cause financial hardship
to the person; or
(b) for any other reason the Chief Commissioner considers
20 it appropriate to do so.
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Native Title (State Provisions) Bill 1999
Consultation procedures for acts to which section 24MD(6B) Part 4
of the NTA applies
Preliminary Division 1
s. 4.1
Part 4 -- Consultation procedures for acts to which
section 24MD(6B) of the NTA applies
Division 1 -- Preliminary
4.1. Object of this Part
5 The object of this Part is to make provisions that --
(a) supplement, so far as the legislative power of the
Parliament permits, the provisions of subsection (6B) of
section 24MD of the NTA; and
(b) 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.
4.2. Acts to which this Part applies
This Part applies to a future act ("a Part 4 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; or
20 (c) the creation or variation of a right to mine that is
referred to in section 24MD(6B)(b) of the NTA.
4.3. Requirements to be satisfied before a Part 4 act is done
(1) Before a Part 4 act is done the requirements of one of the
paragraphs of subsection (2) must be satisfied in respect of the
25 act.
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Native Title (State Provisions) Bill 1999
Part 4 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 1 Preliminary
s. 4.3
(2) The requirements are --
(a) no objection is lodged under section 4.11 before the
close of business on the closing day;
(b) after the closing day, but immediately before the act is
5 done, there is no --
(i) registered native title body corporate; or
(ii) registered native title claimant,
in relation to any part of the relevant land;
(c) all objections lodged under section 4.11 before the close
10 of business on the closing day are --
(i) withdrawn under section 4.20; or
(ii) dismissed under section 4.24;
(d) an agreement of the kind described in section 4.21 is
made by the consultation parties and given to the
15 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
recommendation --
(i) has not been overruled under section 4.33; and
20 (ii) is no longer capable of being overruled --
(I) because of section 4.33(2); or
(II) because the responsible Minister has
given an instrument to the Commission
under section 4.38;
25 (f) a recommendation that the act not be done is overruled
under section 4.33; or
(g) a recommendation --
(i) that the act be done; or
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Native Title (State Provisions) Bill 1999
Consultation procedures for acts to which section 24MD(6B) Part 4
of the NTA applies
Notices and objections Division 2
s. 4.4
(ii) that the act be done subject to conditions being
complied with,
is overruled under section 4.33 and a determination is
made under that section that the act may be done subject
5 to conditions being complied with.
(3) In subsection (2) --
"close of business" means the close of business of the
Government party as specified in accordance with
section 4.9(2)(f).
10 4.4. Other statutory requirements not affected
Nothing in section 4.3, or in an agreement, recommendation or
determination under this Part, authorizes the Government party
to do a Part 4 act without complying with any requirements of
another written law that apply to the doing of the act.
15 Division 2 -- Notices and objections
4.5. Proponent where act relates to mining
Where the Part 4 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
20 to mine or the variation.
4.6. Identification of proponents in other cases
(1) This section applies where the Part 4 act is not covered by
section 4.5.
(2) The Government party is to determine the person or persons (if
25 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.
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Part 4 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 2 Notices and objections
s. 4.7
(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.
4.7. Closing day for objections
(1) The Government party is to fix, for every Part 4 act, a closing
day for the lodgment of objections to the doing of the act.
15 (2) The Government party may fix a later closing day for the
lodgment of objections to the doing of a Part 4 act if the
Government party is satisfied that it has not been reasonably
practicable for section 4.9(1) to be complied with in respect of
the act.
20 4.8. Notification of acts by Government party
Before a Part 4 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.
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Native Title (State Provisions) Bill 1999
Consultation procedures for acts to which section 24MD(6B) Part 4
of the NTA applies
Notices and objections Division 2
s. 4.9
4.9. Further provision as to notices
(1) The notices required by section 4.8 must be given at least
2 months before the closing day.
(2) Every notice must show --
5 (a) a clear description of the land or waters to which the act
relates;
(b) a description of the nature of the act;
(c) the title of the Government party who --
(i) would do the act; and
10 (ii) will receive objections;
(d) the address at which objections may be lodged and the
postal address to which they may be sent;
(e) the closing day;
(f) the time of close of business of the Government party on
15 the closing day;
(g) the name and address of any person who is a proponent
under section 4.5 or is determined to be a proponent
under section 4.6(2);
(h) how further information about the act can be obtained;
20 and
(i) any other information that is prescribed for the purposes
of section 4.10(1)(a).
(3) The particulars referred to in subsection (2)(c), (d) and (f) are to
be as determined by the Government party.
25 4.10. Prescribed provisions about notice
(1) The regulations may make provision about the giving of notice
under this Division including about --
(a) the information that must be included in a notice; and
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Native Title (State Provisions) Bill 1999
Part 4 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 2 Notices and objections
s. 4.11
(b) how the requirement to give notice --
(i) may be satisfied either generally or in particular
types of cases; and
(ii) may be satisfied in conjunction with the giving
5 of notice under another written law that relates to
a Part 4 act.
(2) Regulations of the kind referred to in subsection (1)(b)(ii) may
be expressed to be made under section 7.1 and under powers
conferred by another written law.
10 4.11. Right to object to doing of act
(1) A person that is, in relation to any part of the relevant land --
(a) a registered native title body corporate; or
(b) subject to subsection (3), a registered native title
claimant,
15 may lodge an objection to the doing of a Part 4 act.
(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.
20 (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.
4.12. Requirements for objections
An objection must --
25 (a) be lodged with the Government party in accordance with
the requirements of the relevant notice;
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Native Title (State Provisions) Bill 1999
Consultation procedures for acts to which section 24MD(6B) Part 4
of the NTA applies
Notices and objections Division 2
s. 4.13
(b) state the manner in which it is said that the doing of the
act would be likely to affect the objector's registered
native title rights and interests in relation to the relevant
land; and
5 (c) comply with any other requirements of the regulations
as to the form or content of objections.
4.13. Time limit
(1) An objection to the doing of a Part 4 act cannot be lodged after
the closing day.
10 (2) Where, on the application of a person made before the closing
day, the Commission is satisfied that exceptional circumstances
so require, the Commission may --
(a) fix a later closing day for the lodgment of objections to
the doing of the act; and
15 (b) give such directions as the Commission thinks
appropriate as to the giving of notice of the day so fixed.
4.14. Government party to notify the Commission of objections
(1) The Government party must notify --
(a) the Commission; and
20 (b) any proponent,
of the particulars of all objections to the doing of a Part 4 act
lodged on or before the closing day.
(2) Notification under subsection (1) of an objection must be given
not later than 14 days after the lodgment of the objection.
25 4.15. 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;
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Native Title (State Provisions) Bill 1999
Part 4 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 3 Consultation and agreements
s. 4.16
(b) the other consultation parties (if any); and
(c) the Government party,
that the proponent's application, request or submission for the
doing of the act is withdrawn.
5 (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
referred to in that subsection brings to an end any procedures
10 that have begun under this Part.
4.16. Withdrawal of proposal by Government party
(1) The application of section 4.15 extends to cases where --
(a) section 4.5 does not apply; and
(b) a proponent has not been determined under
15 section 4.6(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 4.15 apply with all necessary
20 changes.
Division 3 -- Consultation and agreements
4.17. Meaning of "consultation parties"
References in this Part to "consultation parties" in relation to a
Part 4 act are references to --
25 (a) each proponent under section 4.5 and each objector; or
(b) where section 4.5 does not apply --
(i) the Government party;
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Consultation procedures for acts to which section 24MD(6B) Part 4
of the NTA applies
Consultation and agreements Division 3
s. 4.18
(ii) each objector; and
(iii) any person determined under section 4.6(2) to be
a proponent but only so long as the person
consents to being a consultation party.
5 4.18. Consultation
(1) The consultation parties must consult with each other in good
faith about ways of minimizing the impact of the act on
registered native title rights and interests in relation to the
relevant land, including about --
10 (a) any access to the land or waters; or
(b) the way in which any thing authorized by the act may be
done,
with a view to bringing about the withdrawal of the objections.
(2) The consultation parties for the time being may begin
15 consultations even though the closing day for the act concerned
has not arrived.
4.19. 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
20 resolving the differences between them on the relevant matters
mentioned in section 4.18.
(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.
25 (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 4.18; and
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Part 4 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 4 Recommendations of the Commission
s. 4.20
(b) to bring about --
(i) a resolution of the differences between them on
the relevant matters mentioned in section 4.18; or
(ii) the withdrawal of the objections.
5 4.20. 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.
(2) The Commission is to notify the consultation parties of any such
10 withdrawal.
4.21. Agreement made by parties
If at any time before a recommendation is made under
Division 4 the consultation parties make an agreement that
resolves the issues on which the objections were based, they
15 may give a copy of it to the Commission.
Division 4 -- Recommendations of the Commission
4.22. Commission may notify intention to hear
(1) The Commission may, after the consultation period for a Part 4
act has expired, give notice to the consultation parties that it
20 intends to hear and determine objections to the doing of the
act --
(a) if --
(i) all of the objections have not been withdrawn; or
(ii) an agreement of the kind described in
25 section 4.21 has not been made between the
consultation parties and given to the Commission
under that section;
and
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Consultation procedures for acts to which section 24MD(6B) Part 4
of the NTA applies
Recommendations of the Commission Division 4
s. 4.23
(b) if the Commission considers that any mediation
requested under section 4.19(1) has been completed.
(2) A notice under subsection (1) in respect of a Part 4 act may be
given by the Commission --
5 (a) of its own motion; or
(b) on the application of a consultation party.
(3) The Commission must grant an application made under
subsection (2)(b) if the application complies with section 4.40
and is accompanied by the things required by section 4.41.
10 (4) Without limiting section 6.22, a notice under subsection (1) may
relate to more than one act and the objections to the doing of the
act.
(5) In this section --
"consultation period" means the period beginning on the
15 closing day and ending 4 months after that day.
4.23. Consultations may continue
Where the Commission --
(a) has given notice under section 4.22; but
(b) has not made a recommendation,
20 in respect of a Part 4 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
based; and
(d) the withdrawal of the objections.
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Native Title (State Provisions) Bill 1999
Part 4 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 4 Recommendations of the Commission
s. 4.24
4.24. Dismissal of objections
(1) 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 4.11(1); or
(b) none of the rights and interests claimed to be affected by
the doing of the act are registered native title rights and
interests of the objector.
(2) The Commission must notify an objector of the dismissal of his
10 or her objection.
4.25. Time for making recommendation
(1) Subject to section 4.26, the Commission must take all
reasonable steps to make a recommendation in respect of a
Part 4 act within the period of 4 months ("the allowed period")
15 starting when a notice under section 4.22 is given in respect of
the act.
(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
20 extend the period, and that Minister may comply with the
request.
(3) An extended period may be further extended under
subsection (2).
4.26. No recommendation if agreement etc.
25 The Commission must not make a recommendation in respect of
a Part 4 act if --
(a) all of the objections to the doing of the act have been
withdrawn; or
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Consultation procedures for acts to which section 24MD(6B) Part 4
of the NTA applies
Recommendations of the Commission Division 4
s. 4.27
(b) an agreement of the kind described in section 4.21 has
been made between the consultation parties and given to
the Commission under that section.
4.27. Making of recommendation
5 (1) Except where section 4.26 applies, the Commission must make
one of the following recommendations --
(a) that the act be done;
(b) that the act be done subject to specified conditions being
complied with by any of the consultation parties;
10 (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
affects registered native title rights and interests in relation to
the relevant land.
15 4.28. Criteria for making recommendations
(1) In making its recommendation in respect of any Part 4 act, the
Commission must --
(a) take into account the impact of the act on registered
native title rights and interests of the objectors in
20 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.
(2) In addition, in making its recommendation in respect of a Part 4
act that is not a compulsory acquisition that comes within
25 section 24MD(6B)(a) of the NTA, the Commission must
consider questions of --
(a) access to the relevant land; and
(b) the way in which any thing authorized by the act may be
done.
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Part 4 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 4 Recommendations of the Commission
s. 4.29
(3) 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
5 (b) existing use of the relevant land by persons other than
the objectors.
4.29. Issues on which parties agree
(1) Before making its recommendation, the Commission must
ascertain whether the consultation parties have an agreed
10 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 --
(a) must take that agreed position into account; and
(b) need not take into account the matters mentioned in
15 section 4.28, to the extent that the matters relate to that
issue.
4.30. Copy of recommendation to be given
The Commission must give a copy of any recommendation
under section 4.27 to the consultation parties and the
20 responsible Minister.
4.31. 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 4.33.
25 4.32. Effect of recommendation that specifies conditions
(1) A recommendation by the Commission that a Part 4 act may be
done subject to conditions being complied with by the
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Consultation procedures for acts to which section 24MD(6B) Part 4
of the NTA applies
Overruling of recommendations Division 5
s. 4.33
consultation parties has effect, if the act is done, as if the
conditions were terms of a contract among the consultation
parties.
(2) Subsection (1) is in addition to --
5 (a) the effect that the recommendation has under
section 4.31; and
(b) any condition that the Government party may impose in
relation to the act in order to give effect to the
recommendation.
10 (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.
Division 5 -- Overruling of recommendations
15 4.33. Responsible Minister may overrule a recommendation
(1) Subject to sections 4.35 and 4.36, the responsible Minister may,
by writing given to the Commission, make a determination in
accordance with section 4.34.
(2) A determination cannot be made by the responsible Minister in
20 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
consultation parties concerned.
4.34. Determinations that responsible Minister may make
25 (1) In the case of a recommendation under section 4.27(1)(a), the
responsible Minister may make a determination that the
recommendation is overruled and either --
(a) that the act to which it relates must not be done; or
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Part 4 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 5 Overruling of recommendations
s. 4.35
(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 4.27(1)(b), the
5 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
10 specified conditions to be complied with by any of the
consultation parties.
(3) In the case of a recommendation under section 4.27(1)(c), the
responsible Minister may make a determination that the
recommendation is overruled and either --
15 (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
20 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.
4.35. Consultation before making of determination
25 (1) This section applies if the effect of the responsible Minister's
determination under section 4.33 is that the act may be done --
(a) unconditionally;
(b) subject to conditions being complied with; or
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Consultation procedures for acts to which section 24MD(6B) Part 4
of the NTA applies
Overruling of recommendations Division 5
s. 4.36
(c) subject to conditions being 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
5 determination under section 4.33 after he or she has --
(a) consulted the State Minister principally responsible for
indigenous affairs about --
(i) the Commission's recommendation; and
(ii) any determination that the responsible Minister
10 may make;
and
(b) taken into account any recommendation or advice made
or given by that Minister.
(3) Before the consultations referred to in subsection (2) are held,
15 the State Minister principally responsible for indigenous affairs
is to be given --
(a) by the Commission, any submission or other material
that was put before it in relation to the recommendation
in question; and
20 (b) by the responsible Minister, any submission or other
material that has been put before him or her for the
purposes of the determination in question.
(4) The duty imposed by subsection (3)(b) applies subject to any
direction given by the Commission under section 6.29.
25 4.36. Ground on which determination may be made
(1) The responsible Minister may only make a determination under
section 4.33 on the ground that it is in the interests of the State
to do so.
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Part 4 Consultation procedures for acts to which section 24MD(6B)
of the NTA applies
Division 5 Overruling of recommendations
s. 4.37
(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
5 (b) in the interests of the relevant region or locality in
the State.
4.37. Conditions in determination
(1) A provision in a determination by the responsible Minister
under section 4.33 that a Part 4 act may be done subject to
10 conditions being complied with by any of the consultation
parties has effect, if the act is done, as if the conditions were
terms of a contract among the consultation parties.
(2) Subsection (1) is in addition to --
(a) the effect that the determination has apart from this
15 section; and
(b) any condition that the Government party may impose
in relation to the act in order to give effect to the
determination.
(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 consultation party for the purposes only of this
section.
4.38. Responsible Minister may declare intention not to overrule
(1) The responsible Minister may by instrument given to the
25 Commission declare that he or she does not intend to exercise
any power conferred by section 4.33 in respect of a particular
recommendation.
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Consultation procedures for acts to which section 24MD(6B) Part 4
of the NTA applies
Applications Division 6
s. 4.39
(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 4.33 in
5 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
4.39. Definition
10 In this Division --
"application" means an application under section 4.22(2)(b).
4.40. 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.
4.41. Material and fees to accompany applications
An application must be accompanied by any prescribed
documents and any prescribed fee.
20 4.42. Application fee may be waived
The Chief Commissioner may waive payment of the whole or
part of a fee payable by a person under section 4.41 where --
(a) in the Chief Commissioner's opinion, payment of the
whole or part of the fee would cause financial hardship
25 to the person; or
(b) for any other reason the Chief Commissioner considers
it appropriate to do so.
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Native Title (State Provisions) Bill 1999
Part 5 Provisions relating to compensation
Division 1 Preliminary
s. 5.1
Part 5 -- Provisions relating to compensation
Division 1 -- Preliminary
5.1. Definition
In this Part, other than in section 5.2(1) and 5.2(2) --
5 "native title holders", in relation to a Part 2 act, a Part 3 act or
a Part 4 act, means the persons who --
(a) hold native title; or
(b) immediately before the act was done, held native
title,
10 in relation to the land affected by the act, but only if there
has been an approved determination of native title to that
effect, which includes the following cases if the act
concerned is a compulsory acquisition --
(c) where it is apparent from the terms of, or reasons for,
15 the determination that the persons held native title
immediately before the acquisition; or
(d) where it is not apparent from the terms of, or reasons
for, the determination that native title did not exist
immediately before the acquisition.
20 Division 2 -- Determination of compensation
5.2. Commission to determine compensation for certain acts
(1) This section applies where a Part 2 act, a Part 3 act or a Part 4
act is done, other than an act that is a compulsory acquisition of
native title rights and interests for which the native title holders
25 in relation to the relevant land are entitled to compensation
under the Land Administration Act 1997.
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Native Title (State Provisions) Bill 1999
Provisions relating to compensation Part 5
Determination of compensation Division 2
s. 5.2
(2) The native title holders are entitled to compensation on just
terms under this section for any loss, diminution or impairment
of, or other effect of the act on, their native title rights and
interests.
5 (3) The principles set out in Division 3 apply to a determination of
compensation under this section.
(4) The Commission, on application made --
(a) is to determine the amount of any such compensation
and the native title holders entitled to receive it; and
10 (b) may make such orders as it considers appropriate,
including orders as to costs and other ancillary matters.
(5) The compensation is recoverable --
(a) from any person who is made liable for the
compensation by a written law; or
15 (b) to the extent that --
(i) no such liability is provided for; or
(ii) an order under subsection (6) so provides,
from the Crown.
(6) If, on application made, the Commission is satisfied that --
20 (a) a person who is made liable as mentioned in
subsection (5)(a) no longer exists; or
(b) there is no reasonable prospect of the compensation, or
part of it, being recovered from that person,
the Commission may order that the compensation, or the part in
25 question, is recoverable from the Crown.
(7) If compensation is recovered from the Crown because of an
order under subsection (6), the Crown is subrogated to the rights
that the native title holders concerned had against the person
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Native Title (State Provisions) Bill 1999
Part 5 Provisions relating to compensation
Division 2 Determination of compensation
s. 5.3
referred to in that subsection in relation to the recovery of the
amount paid.
(8) An application under subsection (4) or (6) is to be made --
(a) by the native title holders concerned; or
5 (b) on their behalf, by a native title holder concerned or a
registered native title body corporate,
and is to be made in accordance with any requirements of the
regulations.
5.3. Enforcement of order for compensation
10 (1) Where compensation is recoverable by or on behalf of a native
title holder by virtue of an order under section 5.2, the Chief
Commissioner, on application by or on behalf of 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
15 court in accordance with the rules of court, the clerk or registrar
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 --
20 "court" means --
(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
25 the order would be within the monetary limit of the
jurisdiction of that Court in respect of the recovery of
debts; or
(c) otherwise, the Supreme Court.
page 88
Native Title (State Provisions) Bill 1999
Provisions relating to compensation Part 5
Principles to be applied in the determination of compensation Division 3
s. 5.4
Division 3 -- Principles to be applied in the determination of
compensation
5.4. No multiple compensation for essentially same act
Compensation under this Part --
5 (a) is only payable once for acts that are essentially the
same; and
(b) is to be determined taking into account any
compensation awarded under another written law, or the
NTA, for essentially the same act.
10 5.5. Compensation principles to be as for ordinary title
The Commission in determining compensation for an act under
this Part must, subject to sections 5.6 and 5.7, have regard to
any principles or criteria for determining compensation set out
in a written law that would apply to the determination if the
15 native title holders instead held ordinary title to any land or
waters concerned and to the land adjoining or surrounding any
waters concerned.
5.6. Compensation to be monetary
Subject to section 5.7, compensation may only consist of the
20 payment of money.
5.7. Requests for non-monetary compensation
(1) If the person claiming compensation under this Part requests
that the whole or part of the compensation should consist of the
transfer of property or the provision of goods or services, the
25 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
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Native Title (State Provisions) Bill 1999
Part 5 Provisions relating to compensation
Division 4 Determination of amounts to be held in trust and payment of
those amounts
s. 5.8
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
5 or services in accordance with the recommendation, the person
claiming 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.
(3) If the person does transfer the property or provide the goods or
10 services in accordance with the recommendation --
(a) the transfer of the property or provision of the goods or
services constitutes full or part compensation for the act,
as the case may be; and
(b) the entitlement to compensation is taken to have been
15 determined in accordance with the provisions of this
Part.
Division 4 -- Determination of amounts to be held in trust and
payment of those amounts
5.8. Conditions for payment of amounts to be held in trust
20 (1) This section applies to a condition in one of the following
instruments --
(a) a determination by the responsible Minister under
section 3.29;
(b) a determination by the Commission under section 3.44;
25 and
(c) a declaration by the responsible Minister under
section 3.51.
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Native Title (State Provisions) Bill 1999
Provisions relating to compensation Part 5
Determination of amounts to be held in trust and payment of Division 4
those amounts
s. 5.9
(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 5.9 --
(a) the Commission must determine the amount; and
(b) the amount, when paid, must be held in trust in
5 accordance with the regulations until it is dealt with in
accordance with that section.
5.9. How amounts held in trust to be dealt with
The relevant provisions of sections 5.10 to 5.15 apply if an
amount ("the trust amount") in respect of an act is being held
10 in trust in accordance with a condition referred to in
section 5.8(2) and any of the following happens --
(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;
15 (b) the Government party informs the trustee in writing that
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
20 (disregarding any holding of the native title in
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
25 the trustee that it wishes to accept the trust
amount instead of any compensation to which
the native title holders may be entitled for the act
under this Act or another written law; and
(iii) the person who paid the trust amount advises the
30 trustee that the person agrees to the registered
native title body corporate accepting the trust
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Native Title (State Provisions) Bill 1999
Part 5 Provisions relating to compensation
Division 4 Determination of amounts to be held in trust and payment of
those amounts
s. 5.10
amount instead of any compensation to which
the native title holders may be entitled for the act
under this Act or another written law;
(d) a determination is made, on a claim for compensation in
5 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,
10 that it would be just and equitable in all the
circumstances to pay the trust amount to that person or
another person.
5.10. Section 5.9(a) or (b) cases
Where section 5.9(a) or (b) applies, the trustee must --
15 (a) repay the trust amount to the person who paid it to the
trustee; or
(b) if that person no longer exists, apply to the Commission
for a direction as to the payment of the trust amount.
5.11. Section 5.9(c) cases
20 Where section 5.9(c) applies --
(a) the trustee must pay the trust amount to the body
corporate; and
(b) subject to section 53 of the NTA, there is no further
entitlement to compensation for the act.
25 5.12. Section 5.9(d) cases where monetary compensation
Where section 5.9(d) applies and the determination is that a
person is entitled to an amount of monetary compensation --
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Native Title (State Provisions) Bill 1999
Provisions relating to compensation Part 5
Determination of amounts to be held in trust and payment of Division 4
those amounts
s. 5.13
(a) if the trust amount is the same as the amount
determined, the trustee must pay the trust amount to the
person;
(b) if the trust amount is less than the amount determined,
5 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 --
10 (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
exists, apply to the Commission for a direction as
15 to its payment.
5.13. Section 5.9(d) cases where non-monetary compensation
Where section 5.9(d) applies and --
(a) the transfer of property; or
(b) the provision of goods or services,
20 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.
5.14. Section 5.9(d) cases where no compensation
Where section 5.9(d) applies and the determination is that no
25 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
Commission for a direction as to its payment.
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Native Title (State Provisions) Bill 1999
Part 5 Provisions relating to compensation
Division 4 Determination of amounts to be held in trust and payment of
those amounts
s. 5.15
5.15. Section 5.9(e) cases
Where paragraph (e) of section 5.9 applies, the trustee must pay
the trust amount in accordance with the decision of the
Commission mentioned in that paragraph.
5 5.16. Jurisdiction of the Commission under this Division
The Commission has jurisdiction --
(a) to hear and determine the applications referred to in
sections 5.9(e), 5.10(b), 5.12(c)(ii), 5.13 and 5.14; and
(b) to make such orders in the proceedings as it considers
10 appropriate.
page 94
Native Title (State Provisions) Bill 1999
Native Title Commission Part 6
Commission established Division 1
s. 6.1
Part 6 -- Native Title Commission
Division 1 -- Commission established
6.1. Establishment of Commission
The Native Title Commission of Western Australia is
5 established.
6.2. Functions of Commission
(1) The functions of the Commission are --
(a) to exercise the jurisdiction and to perform the functions
given to it by this Act; and
10 (b) to perform any function that may be given to it by any
other written law.
(2) The Commission may do all things that are necessary or
convenient to be done for the performance of its functions.
6.3. Requirements for fairness etc. to be observed
15 The Commission is to --
(a) perform its functions fairly, justly and expeditiously;
and
(b) ensure that, subject to this Act, its procedures are
informal and accessible.
20 6.4. Membership of the Commission
(1) The Commission is to comprise --
(a) a Chief Commissioner; and
(b) such number of other members as the Governor
considers necessary for the proper performance of the
25 Commission's functions.
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Native Title (State Provisions) Bill 1999
Part 6 Native Title Commission
Division 1 Commission established
s. 6.5
(2) All of the members are to be appointed by the Governor.
(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.
5 6.5. Eligibility for appointment as Chief Commissioner
A person is not eligible to be appointed as the Chief
Commissioner unless the person has been enrolled for at least
5 years as a legal practitioner of --
(a) the Supreme Court;
10 (b) the High Court; or
(c) the Supreme Court of another State or of a Territory.
6.6. Appointment of member of NNTT
Not less than one of the ordinary members is to be a person who
holds an appointment under the NTA as a member of the
15 NNTT.
6.7. Qualifications for appointment
Without limiting section 6.6, a person must not be appointed as
an ordinary member unless the person --
(a) has been enrolled for at least 5 years as a legal
20 practitioner of --
(i) the Supreme Court;
(ii) the High Court; or
(iii) the Supreme Court of another State or of a
Territory;
25 or
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Native Title (State Provisions) Bill 1999
Native Title Commission Part 6
Commission established Division 1
s. 6.8
(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;
5 (iii) dispute resolution;
(iv) any other class of matter considered by the
Governor to be substantially relevant to the
duties of a member.
6.8. Ordinary members, notice of proposed appointment
10 (1) Where it is proposed to appoint any person as an ordinary
member, the Minister must give notice of the proposal in --
(a) the Gazette; and
(b) a daily newspaper circulating generally throughout the
State,
15 and may give notice in such other newspapers, journals or
electronic media as the Minister considers appropriate.
(2) A notice referred to in subsection (1) must --
(a) set out the qualifications required by section 6.7 for
appointment as an ordinary member;
20 (b) invite persons or organizations who wish to do so to
nominate, in the manner specified in the notice, persons
for consideration as appointees; and
(c) invite persons who wish to do so to inform the Minister,
in the manner specified in the notice, that they are
25 interested in becoming an ordinary member.
(3) This section does not apply to an appointment for the purposes
of section 6.6.
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Native Title (State Provisions) Bill 1999
Part 6 Native Title Commission
Division 1 Commission established
s. 6.9
6.9. Administrative functions of Chief Commissioner
In addition to the functions given to the Chief Commissioner by
particular provisions of this Act, he or she --
(a) is responsible for managing the administrative affairs of
5 the Commission; and
(b) may do all things necessary or convenient to be done for
that purpose.
6.10. Authorization of Chief Commissioner for purposes of
section 199F of the NTA
10 (1) The object of this section is to make provision for delegation to
the Chief Commissioner by the Native Title Registrar under the
power conferred by section 199F of the NTA.
(2) The State Minister may on behalf of the State agree to any
delegation referred to in subsection (1) and the Chief
15 Commissioner may exercise powers in accordance with the
delegation.
6.11. Delegation to members
(1) The Chief Commissioner may, by signed instrument, delegate to
one or more of the ordinary members all or any of the Chief
20 Commissioner's functions under this Act.
(2) Subsection (1) does not apply to --
(a) the power of delegation conferred by that subsection; or
(b) any function that may be delegated to the Chief
Commissioner under section 199F of the NTA as
25 provided for by section 6.10.
6.12. Other provisions relating to members
Schedule 1 has effect in relation to members.
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Native Title (State Provisions) Bill 1999
Native Title Commission Part 6
Staff of the Commission Division 2
s. 6.13
Division 2 -- Staff of the Commission
6.13. Use of government staff etc.
(1) Arrangements may be made under this section to enable the
Commission and the Chief Commissioner to perform their
5 respective functions.
(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;
10 (b) in a State agency or instrumentality; or
(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
15 (b) a State agency or instrumentality,
for the use of any facilities of the department, agency or
instrumentality.
(4) Arrangements under this section --
(a) may be made by the Chief Commissioner acting under
20 section 6.9; and
(b) are to be made on such terms as are agreed to by the
parties.
6.14. Consultants
The Chief Commissioner may, acting under section 6.9, engage
25 a person under a contract for services to provide professional,
technical or other assistance to the Commission or the Chief
Commissioner.
page 99
Native Title (State Provisions) Bill 1999
Part 6 Native Title Commission
Division 3 Operation of Commission
s. 6.15
Division 3 -- Operation of Commission
Subdivision 1 -- How Commission to be constituted
6.15. General position
(1) For the performance of its functions in respect of a particular
5 matter the Commission consists of the member or members
specified by the Chief Commissioner under section 6.18(2) for
that matter.
(2) In exercising the power referred to in subsection (1) in respect
of a matter to which subsection (1) or (2) of section 6.16
10 applies, the Chief Commissioner is to ensure that the
constitution of the Commission satisfies that subsection.
6.16. Constitution of Commission for the performance of certain
functions
(1) For the performance of its functions under Part 3, other than its
15 mediation function under section 3.23(1), the Commission must
include --
(a) at least one member who is qualified as mentioned in
section 6.7(a); and
(b) at least one member who holds an appointment under
20 the NTA as a member of the NNTT.
(2) 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, unless each party consents
25 to the Commission being constituted by or including that
member.
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Native Title (State Provisions) Bill 1999
Native Title Commission Part 6
Operation of Commission Division 3
s. 6.17
6.17. 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
5 constituted in accordance with this Division is at the same time
performing the functions of the Commission in respect of some
other matter.
Subdivision 2 -- Arrangement of business
6.18. Arrangement of business of the Commission
10 (1) The Chief Commissioner is responsible for --
(a) arranging the business of the Commission;
(b) directing where the Commission is to sit;
(c) determining the procedure of the Commission generally;
and
15 (d) determining the procedure of the Commission at a
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 --
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.
6.19. Unavailability of member
25 (1) This section applies if --
(a) a member specified under section 6.18(2) for
proceedings ceases to be a member and section 6.20
does not apply; or
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Native Title (State Provisions) Bill 1999
Part 6 Native Title Commission
Division 3 Operation of Commission
s. 6.20
(b) a member is for any reason not available for proceedings
for which the member has been specified under
section 6.18(2).
(2) The Chief Commissioner must specify another member for the
5 proceedings or, if the parties agree, the Chief Commissioner
may direct that the Commission be constituted by the remaining
specified member or members (if any).
(3) In exercising a power in subsection (2) the Chief Commissioner
must ensure, if subsection (1) or (2) of section 6.16 applies, that
10 the constitution of the Commission continues to satisfy that
subsection.
6.20. 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
15 the Chief Commissioner, continue as a member for the purpose
of completing part-heard proceedings.
Subdivision 3 -- Hearings
6.21. Commission to hold hearings
The Commission is to hold such hearings as are necessary or
20 expedient for the performance of its functions.
6.22. Commission may determine whether matters are to be
grouped together
The Commission may, of its own motion or on the application
of any of the parties concerned, direct that specified matters are
25 to be dealt with --
(a) in the same proceedings or in separate proceedings; or
(b) at the same hearing or hearings or at separate hearings.
page 102
Native Title (State Provisions) Bill 1999
Native Title Commission Part 6
Operation of Commission Division 3
s. 6.23
6.23. Opportunity to make submissions
Subject to sections 6.27(3) and 6.29, the Commission must
ensure that each party is given a reasonable opportunity to
present the party's case and, in particular --
5 (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
documents.
10 6.24. 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.
6.25. Representation before Commission
15 A party may appear in person or be represented by any person
before the Commission.
6.26. Participation by telephone, etc.
The Commission may allow a person to participate in a hearing
by means of telephone, closed-circuit television or any other
20 means of communication.
6.27. Hearings normally to be public
(1) Subject to this section, a hearing by the Commission must be
held in public.
(2) If a hearing is in public, and a person participates by a means
25 allowed under section 6.26, the Commission must take such
steps as are reasonably necessary to maintain the public nature
of the hearing.
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Native Title (State Provisions) Bill 1999
Part 6 Native Title Commission
Division 3 Operation of Commission
s. 6.28
(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.
5 (4) In determining whether a hearing or part of a hearing is to be in
private, the Commission must have due regard to the cultural
and customary concerns of Aboriginal peoples.
Subdivision 4 -- Evidence and information
6.28. Evidence and findings of other bodies
10 In any proceedings, the Commission may, at its discretion --
(a) receive in evidence the transcript of evidence in any
other proceedings before the Commission, any court or
any other person or body;
(b) receive in evidence any report, findings, decision,
15 determination or judgment of a person or body referred
to in paragraph (a); or
(c) adopt any report, findings, decision, determination or
judgment of a person or body referred to in
paragraph (a),
20 that it considers may be relevant to the proceedings.
6.29. Commission may prohibit disclosure of evidence
The Commission may direct that --
(a) any evidence given before it; or
(b) the contents of any document produced to it,
25 must not be disclosed, or must not be disclosed except in the
way, and to the persons, specified in the direction.
page 104
Native Title (State Provisions) Bill 1999
Native Title Commission Part 6
Operation of Commission Division 3
s. 6.30
6.30. Power of Commission to summon
The Commission may, by summons signed on behalf of the
Commission by the Chief Commissioner, require any person --
(a) to appear before the Commission, or before a person
5 authorized under section 6.33; or
(b) to produce any documents specified in the summons to
the Commission or to a person authorized under
section 6.33,
or to do both of those things.
10 6.31. Power of Commission to take evidence
(1) The Commission may take evidence on oath or affirmation, and
for that purpose a member of the Commission may administer
an oath or affirmation.
(2) A party may call witnesses.
15 (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
Commission.
20 (5) If a person participates in a hearing by a means allowed under
section 6.26, the Commission may make any arrangements that
it thinks proper in the circumstances for administering an oath
or affirmation to the person.
6.32. Power of the Commission to require answers
25 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
Commission.
page 105
Native Title (State Provisions) Bill 1999
Part 6 Native Title Commission
Division 3 Operation of Commission
s. 6.33
6.33. 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
5 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 6.31.
10 6.34. Interpreters
The Commission may allow evidence to be given, or
submissions to be made, with the assistance of an interpreter.
6.35. Retention and copying of documents
The Commission may keep for a reasonable time, and may
15 make copies of, any document, or part of a document, produced
to the Commission in the course of a hearing.
Subdivision 5 -- Recommendations and determinations
6.36. Recommendations and determinations
(1) A recommendation or determination of the Commission
20 must --
(a) be in writing;
(b) state any findings of facts on which it is based;
(c) refer to the evidence or other material on which such
findings are based; and
25 (d) give reasons for the recommendation or determination.
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Native Title (State Provisions) Bill 1999
Native Title Commission Part 6
Financial provisions Division 4
s. 6.37
(2) A copy of a recommendation or determination must be given
to --
(a) each of the parties in the proceeding; and
(b) the responsible Minister.
5 Division 4 -- Financial provisions
6.37. 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;
and
10 (b) other moneys lawfully received by, made available to or
payable to the Commission for the purposes of this Act.
6.38. Native Title Commission Account
(1) The funds referred to in section 6.37 are to be credited to an
account called the "Native Title Commission Account" --
15 (a) at the Treasury; or
(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.
20 (2) The Account is to be charged with --
(a) the remuneration and allowances payable under this Act;
and
(b) all other expenditure lawfully incurred in carrying out
this Act.
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Native Title (State Provisions) Bill 1999
Part 6 Native Title Commission
Division 5 General
s. 6.39
6.39. Application of Financial Administration and Audit Act 1985
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
5 Commission and things done in the performance of functions
under this Act.
Division 5 -- General
6.40. Communication of information in certain cases
(1) Where --
10 (a) the Commission is required by or under this Act to cause
a document to be served on or given to any person; and
(b) it appears to the Commission that the person is blind or
illiterate or is not literate in the English language,
the Commission is, so far as it is reasonably practicable to do
15 so, to cause the information contained in the document to be
communicated to the person in a manner that the person
understands.
(2) Failure to comply with subsection (1) does not affect any thing
done under any other provision of this Act.
20 6.41. Reference of question of law to the Supreme Court
(1) The Commission may, of 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 2, 3, 4 or 5.
(2) The Supreme Court has jurisdiction to hear and determine a
25 question of law referred to it under this section.
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Native Title (State Provisions) Bill 1999
Native Title Commission Part 6
General Division 5
s. 6.42
(3) If a question of law arising in proceedings is referred to the
Supreme Court under this section, the Commission must not, in
those proceedings --
(a) make a recommendation or determination to which the
5 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
Court on the question.
6.42. Offences
10 (1) A person who is served with a summons under section 6.30 must
not fail without reasonable excuse to comply with the summons.
Penalty: $2 500.
(2) A person must not fail without reasonable excuse to make an
oath or affirmation, or to answer a question, when required to do
15 so by the Commission.
Penalty: $2 500.
(3) A person must not give to --
(a) the Commission; or
(b) a person authorized under section 6.33,
20 evidence that the person knows to be false or misleading in a
material particular.
Penalty: $5 000.
(4) A person must not misbehave before the Commission, wilfully
insult the Commission or a member, or interrupt the
25 proceedings of the Commission.
Penalty: $5 000.
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Native Title (State Provisions) Bill 1999
Part 6 Native Title Commission
Division 5 General
s. 6.43
(5) A person must not disclose any material in contravention of a
direction given under section 6.27(3) or 6.29.
Penalty: $5 000.
6.43. 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.
6.44. 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.
(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.
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Native Title (State Provisions) Bill 1999
Native Title Commission Part 6
General Division 5
s. 6.45
(3) Subject to this Act, a person appearing before the Commission
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
5 proceedings in the Supreme Court.
6.45. Confidentiality
(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 --
10 (a) the giving of the evidence would be contrary to a
direction under section 6.29; or
(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
15 yet determined that application.
(2) A person who is, or has been, a member or an officer of the
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
20 direction under section 6.29; or
(b) an application has been made to the Commission for a
direction under that section concerning the matter to
which the document relates, and the Commission has
not yet determined that application.
25 (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
relation to any proceedings before the Commission.
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Native Title (State Provisions) Bill 1999
Part 6 Native Title Commission
Division 5 General
s. 6.45
(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.
page 112
Native Title (State Provisions) Bill 1999
Miscellaneous Part 7
s. 7.1
Part 7 -- Miscellaneous
7.1. 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.
7.2. Review of Act
10 (1) The Minister is to carry out and complete a review of the
operation and effectiveness of this Act within 12 months after
the 5th anniversary of the commencement of any provision of
Part 6.
(2) In carrying out the review the Minister is to have particular
15 regard to whether the public policy objectives of this Act remain
valid and whether its provisions remain appropriate for
achieving those objectives.
(3) The Minister is to prepare a report based on the review and
cause the report to be laid before each House of Parliament as
20 soon as is practicable after it is completed.
7.3. Consequential amendments
Schedule 2 has effect.
7.4. Transitional provisions
(1) Despite anything in Part 2 or Part 3, that Part does not apply to
25 an act that would, apart from this subsection, be a Part 2 act or a
Part 3 act if, before the commencement of that Part, all notices
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Native Title (State Provisions) Bill 1999
Part 7 Miscellaneous
s. 7.4
provided for by section 29 of the NTA have been given in
relation to the act.
(2) Division 1 of Schedule 3 has effect to enable regulations of a
transitional nature to be made as to certain matters in progress at
5 the commencement of Part 2 and Part 3.
(3) Division 2 of Schedule 3 has effect to enable regulations of a
transitional nature to be made as to matters in progress under
section 24MD(6B) of the NTA at the commencement of Part 4.
page 114
Native Title (State Provisions) Bill 1999
Provisions relating to members of the Commission Schedule 1
Schedule 1 -- Provisions relating to members of the
Commission
[s. 6.12]
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 6.6.
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.
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Native Title (State Provisions) Bill 1999
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 6.6 terminates if the person ceases to be a member
of the NNTT.
(2) The application of subclause (1) to a person does not affect the
application to him or her of clause 7, 8 or 9.
7. Termination of appointment of member for bankruptcy etc.
15 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
bankrupt or insolvent debtors;
20 (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
(1) The Governor may suspend a member from office on the ground of
25 misbehaviour or of physical or mental incapacity.
(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.
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Native Title (State Provisions) Bill 1999
Provisions relating to members of the Commission Schedule 1
(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.
5 (4) If, at the end of 15 sitting days after the statement was laid before a
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.
10 9. Termination on address of both Houses of Parliament
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
15 in the same session of Parliament.
page 117
Native Title (State Provisions) Bill 1999
Schedule 2 Consequential amendments
Schedule 2 -- Consequential amendments
[s. 7.3]
Division 1 -- Acts Amendment (Land Administration, Mining and
Petroleum) Act 1998
5 1. The Act amended
The amendments in this Division are to the Acts Amendment (Land
Administration, Mining and Petroleum) Act 1998*.
[* Act No. 61 of 1998.]
2. Section 2 amended
10 (1) Section 2(1) is amended by deleting "Subject to subsections (2) and
(3), this" and inserting instead --
" This ".
(2) Section 2(2) and (3) are repealed.
3. Sections 4 and 7 repealed
15 Sections 4 and 7 are repealed.
Division 2 -- Constitution Acts Amendment Act 1899
4. Schedule V amended
Schedule V Part 1 Division 1 to the Constitution Acts Amendment
Act 1899* is amended by inserting after the item relating to the
20 Western Australian Gas Disputes Arbitrator --
"
Member of the Native Title Commission established by the Native
Title (State Provisions) Act 1999.
".
25 [* Reprinted as at 15 April 1999.
For subsequent amendments see Acts Nos. 53 of 1998, and 5, 8, 26
and 34 of 1999.]
page 118
Native Title (State Provisions) Bill 1999
Consequential amendments Schedule 2
Division 3 -- Financial Administration and Audit Act 1985
5. 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 9 July 1999.
For subsequent amendments see Acts Nos. 5, 8 and 26 of 1999.]
Division 4 -- Land Administration Act 1997
10 6. The Act amended
The amendments in this Division are to the Land Administration
Act 1997*.
[* Act No. 30 of 1997.
For subsequent amendments see 1998 Index to Legislation of
15 Western Australia, Table 1, p. 136, and Act No. 26 of 1999.]
7. Section 6A inserted
After section 6 the following section is inserted in Part 1 --
"
6A. Renewal etc. of certain tenures subject to Native
20 Title (State Provisions) Act 1999
(1) Where the exercise of a power under this Act to renew,
re-grant or extend a non-exclusive tenure of land is a
Part 4 act within the meaning of the Native Title (State
Provisions) Act 1999, the exercise of the power is
25 subject to section 4.3 of that Act.
(2) In subsection (1) --
"non-exclusive tenure of land" means an interest
under --
(a) a lease;
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Native Title (State Provisions) Bill 1999
Schedule 2 Consequential amendments
(b) a licence; or
(c) other authority,
that permits the use of the land but does not confer
a right of exclusive possession.
5 ".
8. Section 151 amended
Section 151(1) is amended as follows:
(a) by inserting in the appropriate alphabetical positions the
following definitions --
10 "
"approved determination of native title" means an
approved determination of native title under the
NTA where --
(a) the effect of the determination is that the
15 person concerned --
(i) holds native title; or
(ii) immediately before the taking, held
native title,
in relation to the land affected by the taking;
20 (b) it is apparent from the terms of, or reasons
for, the determination that the person
concerned held native title in relation to the
land affected by the taking immediately
before the taking; or
25 (c) it is not apparent from the terms of, or
reasons for, the determination that native
title did not exist in relation to the land
affected by the taking immediately before
the taking;
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Native Title (State Provisions) Bill 1999
Consequential amendments Schedule 2
"registered native title body corporate" and
"registered native title claimant" have the same
meaning as they have in the NTA;
";
5 (b) in the definition of "proprietor" in paragraph (b) by inserting
after "registered" --
"
, or a registered native title body corporate or
registered native title claimant in relation to the
10 land
".
9. Section 152A inserted
After section 152 the following section is inserted --
"
15 152A. This Part subject to Native Title (State Provisions)
Act 1999
Where the taking of land or an interest in land under
this Part is a Part 2 act, a Part 3 act or a Part 4 act
within the meaning of the Native Title (State
20 Provisions) Act 1999, the operation of this Part is
subject to section 2.6, 3.5 or 4.3, as the case may be, of
that Act.
".
10. Section 153 amended
25 Section 153(3) is amended in paragraph (a) of the definition of "in
accordance with the NTA" as follows:
(a) by deleting "5" in the 3 places where it occurs and inserting
instead --
" 4 ";
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Schedule 2 Consequential amendments
(b) by deleting "1998" and inserting instead --
" 1999 ".
11. Section 154 amended
(1) Section 154(1)(b) is deleted and the following paragraph is inserted
5 instead --
"
(b) the taking of those interests would be a
compulsory acquisition that is referred to in
section 26(1)(c)(iii) of the NTA.
10 ".
(2) Section 154(3) is amended in the definition of "in accordance with the
NTA" as follows:
(a) in paragraph (a) --
(i) by deleting "Part 3" in the 3 places where it occurs
15 and inserting instead --
" Part 2 ";
(ii) by deleting "1998" and inserting instead --
" 1999 ";
(b) in paragraph (b) --
20 (i) by deleting "4" in the 3 places where it occurs and
inserting instead --
" 3 ";
(ii) by deleting "1998" and inserting instead --
" 1999 ".
25 12. Section 156 amended
After section 156(2) the following subsection is inserted --
"
(2a) The entitlement of native title holders to compensation
under Part 10 is an entitlement to compensation on just
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Native Title (State Provisions) Bill 1999
Consequential amendments Schedule 2
terms for any loss, diminution or impairment of, or
other effect of the taking on, their native title rights and
interests.
".
5 13. Section 157 amended
Section 157 is amended by inserting after "native title holders" --
" or a registered native title body corporate ".
14. Section 158 repealed
Section 158 is repealed.
10 15. Section 162 amended
Section 162(2) is amended as follows:
(a) after paragraph (b) by deleting "or";
(b) in paragraph (c) by deleting the comma and inserting
instead --
15 " ; or ";
(c) after paragraph (c) by inserting the following paragraph --
"
(d) a native title right or interest in land under the
surface is injuriously affected,
20 ".
16. Section 163 amended
Section 163 is amended by deleting "or of the principal proprietor of"
and inserting instead --
"
25 , the principal proprietor of the land, or any registered
native title body corporate or registered native title
claimant in relation to
".
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Schedule 2 Consequential amendments
17. Section 170 amended
Section 170(5)(b) is amended by inserting after "occupier of the
land" --
"
5 , any registered native title body corporate or registered
native title claimant in relation to the land,
".
18. Section 175 amended
Section 175(1)(a) is amended after subparagraph (ii) by deleting "or"
10 and inserting instead --
"
(iia) any registered native title body
corporate or registered native title
claimant in relation to land affected by
15 the notice;
(iib) the holder of any native title rights and
interests in land affected by the notice;
or
".
20 19. Section 176 amended
Section 176(1) is amended by deleting ", a lease of Crown land or"
and inserting instead --
" or a lease of Crown land or the holders of ".
20. Section 182 amended
25 Section 182(2) is amended by deleting "and to" and inserting
instead --
"
any registered native title body corporate or registered
native title claimant, and
30 ".
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Consequential amendments Schedule 2
21. Section 183 amended
Section 183(2)(a) is amended by deleting "and to" and inserting
instead --
"
5 any registered native title body corporate or registered
native title claimant, and
".
22. Section 184 amended
Section 184(3) is amended by deleting "and to" and inserting
10 instead --
"
any registered native title body corporate or registered
native title claimant, and
".
15 23. Section 185 amended
Section 185(3) is amended by deleting "and to" and inserting
instead --
"
any registered native title body corporate or registered
20 native title claimant in relation to the land, and
".
24. Section 186 amended
Section 186(3)(a) is amended by deleting "and to" and inserting
instead --
25 "
any registered native title body corporate or registered
native title claimant, and
".
page 125
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Schedule 2 Consequential amendments
25. Section 207 amended
After section 207(2) the following subsection is inserted --
"
(2a) The time limit (whether it has expired or not) under
5 this section must, on the application of a person who
wishes to make a claim in respect of the taking of
native title rights and interests, be extended if an
approved determination of native title is made in
relation to the land to which the claim relates.
10 ".
26. Section 212 amended
After section 212(2) the following subsection is inserted --
"
(3) If the acquiring authority does transfer property,
15 provide goods and services or provide another form of
compensation in accordance with a request --
(a) the transfer of property, provision of goods and
services or provision of another form of
compensation constitutes full or part
20 compensation under this Part, as the case may
be; and
(b) the entitlement to compensation is taken to
have been determined in accordance with the
provisions of this Part.
25 ".
27. Section 214 amended
(1) Section 214(2) is amended by deleting "If" and inserting instead --
" Subject to subsection (3), if ".
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Native Title (State Provisions) Bill 1999
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(2) After section 214(2) the following subsection is inserted --
"
(3) Subsection (2) does not operate to bar a claim in
respect of native title rights and interests if --
5 (a) during or after the 60 day period, or any
extended time, referred to in that subsection an
approved determination of native title is made
in relation to the land to which the claim
relates; and
10 (b) the particulars required under this section are
furnished within 60 days after that
determination is made.
".
28. Section 216 amended
15 (1) Section 216(1) is amended by inserting after "A claimant may," --
" subject to subsection (4), ".
(2) After section 216(3) the following subsection is inserted --
"
(4) An application cannot be made under subsection (1) if
20 the notice disputing the title of the claimant relates to
native title rights and interests.
".
29. Section 217 amended
Section 217(2) is amended as follows:
25 (a) by deleting the passage beginning "If a judgment" and ending
"under dispute," and inserting instead --
page 127
Native Title (State Provisions) Bill 1999
Schedule 2 Consequential amendments
"
If --
(a) a judgment of the Supreme Court under
section 216 confirms, in whole, or in part, a
5 claimant's title to an interest in land under
dispute; or
(b) in the case of a claimant to whom
section 216(4) applies, an approved
determination of native title is made in relation
10 to the claimant,
";
(b) by inserting after "confirmed" --
" or determined ".
30. Section 221 amended
15 Section 221(2)(b) is deleted and the following paragraph is inserted
instead --
"
(b) if the title of the claimant was disputed then --
(i) if the Supreme Court confirmed the
20 claimant's title, in whole or in part,
under section 216 -- the day of the
judgment; or
(ii) if an approved determination of native
title was made in relation to the
25 claimant -- the day of the
determination.
".
31. Section 223 amended
Section 223(7) is amended by deleting "the judgment of the Supreme
30 Court on that issue under section 216" and inserting instead --
page 128
Native Title (State Provisions) Bill 1999
Consequential amendments Schedule 2
"
--
(a) the judgment of the Supreme Court on that
issue under section 216; or
5 (b) in the case of a claimant to whom
section 216(4) applies, the outcome of any
native title determination application made by
the claimant under section 61 of the NTA.
".
10 32. Section 224 amended
Section 224(7) is amended by deleting "the judgment of the Court
under section 216" and inserting instead --
"
--
15 (a) the judgment of the Supreme Court under
section 216; or
(b) in the case of a claimant to whom
section 216(4) applies, the outcome of any
native title determination application made by
20 the claimant under section 61 of the NTA.
".
33. Section 241 amended
(1) Section 241(1) is amended by deleting "taken under this Part" and
inserting instead --
25 "
, other than native title rights and interests, taken under
Part 9
".
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Schedule 2 Consequential amendments
(2) After section 241(1) the following subsection is inserted --
"
(1a) In determining the amount of compensation (if any) to
be offered, paid, or awarded for native title rights and
5 interests taken under Part 9, regard may be had to the
matters referred to in this section.
".
Division 5 -- Mining Act 1978
34. The Act amended
10 The amendments in this Division are to the Mining Act 1978*.
[* Reprinted as at 26 July 1999.]
35. Section 19 amended
(1) Section 19(6)(a) is amended by inserting immediately before "grant"
the following --
15 " subject to subsection (6a), ".
(2) After section 19(6) the following subsection is inserted --
"
(6a) If the grant of a mining tenement under subsection (6)
is a Part 2 act, a Part 3 act or a Part 4 act within the
20 meaning of the Native Title (State Provisions)
Act 1999, the operation of that subsection is subject to
section 2.6, 3.5 or 4.3 of that Act as the case may be.
".
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Consequential amendments Schedule 2
36. Section 39A inserted
Immediately before section 40 the following section is inserted --
"
39A. This Division subject to Native Title (State
5 Provisions) Act 1999
(1) The operation of this Division is subject to section 2.6,
3.5 or 4.3, as the case may be, of the Native Title (State
Provisions) Act 1999 where --
(a) the grant of a prospecting licence; or
10 (b) the grant of any mining tenement under
section 56A,
is a Part 2 act, 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 2.16, 3.15 or
4.11 of the Native Title (State Provisions) Act 1999,
and objections of that kind can only be made under that
Act.
20 ".
37. Section 49 amended
After section 49(1) the following subsection is inserted --
"
(1a) The operation of subsection (1) is subject to
25 section 2.6, 3.5 or 4.3, as the case may be, of the Native
Title (State Provisions) Act 1999.
".
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Schedule 2 Consequential amendments
38. 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 1999 --
(a) an agreement of the kind described in
10 section 2.26, 3.22(1) or 4.21 that is given to the
Commission under section 2.26, 3.25 or 4.21;
(b) a recommendation under section 2.32 or 4.27;
(c) a determination under section 2.38, 3.29, 3.44
or 4.33;
15 (d) a declaration under section 3.51.
".
39. Section 56AA inserted
Immediately before section 56B the following section is inserted --
"
20 56AA. This Division subject to Native Title (State
Provisions) Act 1999
(1) The operation of this Division is subject to section 2.6,
3.5 or 4.3, as the case may be, of the Native Title (State
Provisions) Act 1999 where --
25 (a) the grant or extension of an exploration licence;
or
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Native Title (State Provisions) Bill 1999
Consequential amendments Schedule 2
(b) the grant of any mining tenement under
section 70,
is a Part 2 act, 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 2.16, 3.15 or
4.11 of the Native Title (State Provisions) Act 1999,
and objections of that kind can only be made under that
10 Act.
".
40. Section 67 amended
After section 67(1) the following subsection is inserted --
"
15 (1a) The operation of subsection (1) is subject to
section 2.6, 3.5 or 4.3, as the case may be, of the Native
Title (State Provisions) Act 1999.
".
41. Section 70AA inserted
20 After section 70A the following section is inserted --
"
70AA. This Division subject to Native Title (State
Provisions) Act 1999
(1) The operation of this Division is subject to section 2.6,
25 3.5 or 4.3, as the case may be, of the Native Title (State
Provisions) Act 1999 where the grant or renewal of a
retention licence is a Part 2 act, a Part 3 act or a Part 4
act within the meaning of that Act.
page 133
Native Title (State Provisions) Bill 1999
Schedule 2 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 2.16, 3.15 or
4.11 of the Native Title (State Provisions) Act 1999, and
5 objections of that kind can only be made under that Act.
".
42. Section 70L amended
After section 70L(1) the following subsection is inserted --
"
10 (1a) The operation of subsection (1) is subject to
section 2.6, 3.5 or 4.3, as the case may be, of the Native
Title (State Provisions) Act 1999.
".
43. Section 70O inserted
15 Immediately before section 71 the following section is inserted --
"
70O. This Division subject to Native Title (State
Provisions) Act 1999
(1) Where --
20 (a) the grant or renewal of a mining lease; or
(b) the grant of any mining tenement under
section 85B,
is a Part 2 act, a Part 3 act or a Part 4 act within the
meaning of the Native Title (State Provisions)
25 Act 1999, the operation of the provisions of this
Division relating to that grant or renewal is subject to
section 2.6, 3.5 or 4.3, as the case may be, of that Act.
(2) The provisions of this Division relating to objections to
the granting of an application do not apply to an
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Native Title (State Provisions) Bill 1999
Consequential amendments Schedule 2
objection of the kind referred to in section 2.16, 3.15 or
4.11 of the Native Title (State Provisions) Act 1999,
and objections of that kind can only be made under that
Act.
5 ".
44. Section 75 amended
After section 75(7) the following subsection is inserted --
"
(8) The operation of subsection (7) is subject to
10 section 2.6, 3.5 or 4.3, as the case may be, of the Native
Title (State Provisions) Act 1999.
".
45. Section 85C inserted
Immediately before section 86 the following section is inserted --
15 "
85C. This Division subject to Native Title (State
Provisions) Act 1999
(1) The operation of this Division in relation to the grant of
general purpose leases is subject to section 2.6, 3.5 or
20 4.3, as the case may be, of the Native Title (State
Provisions) Act 1999.
(2) Where the renewal of a general purpose lease is a Part
2 act, a Part 3 act or a Part 4 act within the meaning of
the Native Title (State Provisions) Act 1999, the
25 operation of this Division in relation to that renewal is
subject to section 2.6, 3.5 or 4.3, as the case may be, of
that Act.
(3) The provisions relating to objections to the granting of
an application that apply for the purposes of this
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Schedule 2 Consequential amendments
Division do not apply to an objection of the kind
referred to in section 2.16, 3.15 or 4.11 of the Native
Title (State Provisions) Act 1999, and objections of that
kind can only be made under that Act.
5 ".
46. Section 90A inserted
Immediately before section 91 the following section is inserted --
"
90A. This Division subject to Native Title (State
10 Provisions) Act 1999
(1) The operation of this Division is subject to section 2.6,
3.5 or 4.3, as the case may be, of the Native Title (State
Provisions) Act 1999 where the grant of a
miscellaneous licence is a Part 2 act, a Part 3 act or a
15 Part 4 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
Division do not apply to an objection of the kind
referred to in section 2.16, 3.15 or 4.11 of the Native
20 Title (State Provisions) Act 1999, and objections of that
kind can only be made under that Act.
".
Division 6 -- Parliamentary Commissioner Act 1971
47. Schedule 1 amended
25 Schedule 1 to the Parliamentary Commissioner Act 1971* is amended
by inserting in the appropriate alphabetical position the following --
page 136
Native Title (State Provisions) Bill 1999
Consequential amendments Schedule 2
"
The Native Title Commission established by the Native Title
(State Provisions) Act 1999.
".
5 [* Reprinted as at 20 January 1997.
For subsequent amendments see 1998 Index to Legislation of
Western Australia, Table 1, p. 182, and Act No. 65 of 1998.]
Division 7 -- Petroleum Act 1967
48. The Act amended
10 The amendments in this Division are to the Petroleum Act 1967*.
[* Reprinted as at 17 December 1992.
For subsequent amendments see 1998 Index to Legislation of
Western Australia, Table 1, p. 188 and Act No. 17 of 1999.]
49. Section 5 amended
15 After section 5(8) the following subsection is inserted --
"
(9) If the exercise of the power conferred by subsection (8)
to amend or vary any instrument is a Part 2 act, a Part 3
act or a Part 4 act within the meaning of the Native
20 Title (State Provisions) Act 1999 that exercise is
subject to section 2.6, 3.5 or 4.3, as the case may be, of
that Act.
".
50. Section 11 amended
25 After section 11(1) the following subsection is inserted --
"
(1a) If any act to be done under subsection (1) is a Part 2
act, a Part 3 act or a Part 4 act within the meaning of
the Native Title (State Provisions) Act 1999, the
page 137
Native Title (State Provisions) Bill 1999
Schedule 2 Consequential amendments
operation of that subsection is subject to section 2.6,
3.5 or 4.3, as the case may be, of that Act.
".
51. Section 28B inserted
5 Immediately before section 29 the following section is inserted --
"
28B. This Division subject to Native Title (State
Provisions) Act 1999
The operation of this Division is subject to section 2.6,
10 3.5 or 4.3, as the case may be, of the Native Title (State
Provisions) Act 1999 where the grant, renewal or
extension of an exploration permit or a drilling
reservation is a Part 2 act, a Part 3 act or a Part 4 act
within the meaning of that Act.
15 ".
52. Section 48AA inserted
Immediately before section 48A the following section is inserted --
"
48AA. This Division subject to Native Title (State
20 Provisions) Act 1999
The operation of this Division is subject to section 2.6,
3.5 or 4.3, as the case may be, of the Native Title (State
Provisions) Act 1999 where the grant or renewal of a
retention lease is a Part 2 act, a Part 3 act or a Part 4 act
25 within the meaning of that Act.
".
page 138
Native Title (State Provisions) Bill 1999
Consequential amendments Schedule 2
53. Section 48L inserted
Immediately before section 49 the following section is inserted --
"
48L. This Division subject to Native Title (State
5 Provisions) Act 1999
Where the grant or renewal of a production licence is a
Part 2 act, a Part 3 act or a Part 4 act within the
meaning of the Native Title (State Provisions)
Act 1999, the operation of the provisions of this
10 Division relating to that grant or renewal is subject to
section 2.6, 3.5 or 4.3, as the case may be, of that Act.
".
54. 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 2 act, a Part 3 act or a
Part 4 act within the meaning of the Native Title (State
Provisions) Act 1999, the operation of that subsection
20 is subject to section 2.6, 3.5 or 4.3, as the case may be,
of that Act.
".
55. 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 2 act, a Part 3 act or a Part 4 act
within the meaning of the Native Title (State Provisions)
Act 1999, the operation of that subsection is subject to
30 section 2.6, 3.5 or 4.3, as the case may be, of that Act.
".
page 139
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Schedule 2 Consequential amendments
56. Section 116 amended
After section 116(1) the following subsection is inserted --
"
(1a) Where the giving of a consent under subsection (1) is a
5 Part 2 act, a Part 3 act or Part 4 act within the meaning
of the Native Title (State Provisions) Act 1999, the
operation of that subsection is subject to section 2.6,
3.5 or 4.3, as the case may be, of that Act.
".
10 Division 8 -- Petroleum Pipelines Act 1969
57. The Act amended
The amendments in this Division are to the Petroleum Pipelines
Act 1969*.
[* Reprinted as at 19 February 1992.
15 For subsequent amendments see 1998 Index to Legislation of Western
Australia, Table 1, p. 189 and Acts Nos. 65 of 1998, and 20 of 1999.]
58. Section 10A inserted
After section 10 the following section is inserted --
"
20 10A. Licence not to affect native title
(1) A licence is not to be taken to authorize the licensee or
any other person to do any act that affects native title.
(2) In subsection (1) --
"affects" and "native title" have the meanings given
25 to them respectively by sections 227 and 223 of
the Native Title Act 1993 of the Commonwealth.
".
page 140
Native Title (State Provisions) Bill 1999
Consequential amendments Schedule 2
59. Section 19 amended
After section 19(1) the following subsection is inserted --
"
(1a) Where the taking of land or an easement in land under
5 subsection (1) is a Part 2 act, a Part 3 act or Part 4 act
within the meaning of the Native Title (State
Provisions) Act 1999, the operation of that subsection
is subject to section 2.6, 3.5 or 4.3, as the case may be,
of that Act.
10 ".
page 141
Native Title (State Provisions) Bill 1999
Schedule 3 Transitional provisions
Schedule 3 -- Transitional provisions
[s. 7.4]
Division 1 -- Existing applications for mining tenements
1. Definition
5 In this Division --
"existing mining application" means an application --
(a) for a Part 2 act or a Part 3 act to be done that would --
(i) create or vary a right to mine; or
(ii) renew, re-grant, remake or extend the term of an
10 instrument creating a right to mine; and
(b) that --
(i) was made before the commencement of Part 2 or
Part 3, as the case may be; but
(ii) was not granted before that commencement.
15 2. Regulations may modify certain provisions
The regulations may make provisions by which sections 2.14 and 3.13
are modified in their application to Part 2 acts and Part 3 acts to which
existing mining applications relate to provide that all notices of those
acts under sections 2.12 and 3.10 are to be given by the Government
20 party.
3. Programme for dealing with existing mining applications
(1) The regulations may make provisions that establish a programme by
which the giving of notices under sections 2.12 and 3.10 of Part 2 acts
and Part 3 acts to which existing mining applications relate are to be
25 spread over a period of time.
(2) The purpose of the programme is to enable the processes in Parts 2
and 3 to be applied to the acts concerned in an orderly and effective
manner.
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Native Title (State Provisions) Bill 1999
Transitional provisions Schedule 3
(3) In particular, the regulations may provide, as part of the programme,
for the giving of notices of acts relating to areas of the State specified
in the regulations to be limited to a certain number of acts during a
period so specified.
5 Division 2 -- Matters in progress under section 24MD(6B)
of the NTA
4. Definition
(1) In this Division --
"section 24MD(6B) matter" means, subject to this clause, an act,
10 matter or circumstance that has occurred or come into existence
before the commencement of Part 4 for the purpose of --
(a) the State meeting its obligations; or
(b) a person exercising rights or performing functions,
under subsection (6B) of section 24MD of the NTA, or
15 otherwise for the purposes of that subsection.
(2) The definition in subclause (1) includes notices given, time that has
elapsed or commenced to run, objections made, requests for a hearing
and, subject to subclause (3), proceedings commenced.
(3) The definition does not include --
20 (a) proceedings commenced if the independent person referred to
in section 24MD(6B) has entered upon the proceedings to the
extent of holding a hearing; or
(b) determinations or recommendations made.
5. Regulations may make transitional provisions
25 (1) The regulations may make any provision of a transitional nature that
is necessary or expedient to be made to ensure that, after the
commencement of Part 4 --
(a) all section 24MD(6B) matters are dealt with under that Part;
and
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Native Title (State Provisions) Bill 1999
Schedule 3 Transitional provisions
(b) there is an effective transition from the provisions of
section 24MD(6B) of the NTA to the provisions of that Part.
(2) Without limiting subclause (1), the regulations may make provision
for the continuing effect of section 24MD(6B) matters, whether with
5 or without modification, and for those matters to be treated as if they
had occurred or come into existence for the purposes of Part 4.
(3) Provision may be made as mentioned in subclause (2) despite the fact
that a section 24MD(6B) matter does not fully comply with a
requirement of Part 4.
page 144
Native Title (State Provisions) Bill 1999
Defined Terms
Defined terms in this Act
[This is a list of terms defined in this Act and the provisions where they
are defined. The list is not part of the law.]
Defined term Provision(s)
a Part 2 act ...........................................................................................................2.5(1)
a Part 3 act ...........................................................................................................3.4(1)
a Part 4 act ............................................................................................................... 4.2
agreement ..........................................................................................................3.48(2)
alternative provision area.......................................................................................... 2.1
application ............................................................................................ 2.44, 3.56, 4.39
Chief Commissioner.............................................................................................1.5(4)
close of business............................................................................ 2.6(3), 3.5(3), 4.3(3)
closing day...........................................................................................................1.5(4)
Commission .........................................................................................................1.5(4)
Commonwealth Minister ......................................................................................1.5(3)
consultation parties..............................................................................1.5(4), 2.22, 4.17
consultation period ................................................................................2.27(6), 4.22(5)
court .......................................................................................................5.3(4), 6.45(4)
determination .....................................................................................................3.48(2)
existing mining application.................................................................................. Sch. 3
Government party.................................................................................................1.5(4)
grant for the benefit of Aboriginal persons ................................................................ 2.1
in the interests of the State.....................................................................2.41(2), 4.36(2)
last day for the lodgment of objections..................................................................2.6(3)
member................................................................................................................1.5(4)
native title holders.................................................................................................... 5.1
negotiation parties ...................................................................................1.5(4), 3.21(1)
negotiation period ..............................................................................................3.39(7)
objection period ...................................................................................................3.5(3)
objector................................................................................................................1.5(4)
ordinary member ..................................................................................................1.5(4)
Part 2 act..............................................................................................................1.5(4)
Part 3 act..............................................................................................................1.5(4)
Part 4 act..............................................................................................................1.5(4)
pending application ..............................................................................................2.6(3)
produce ..............................................................................................................6.45(4)
proponent.............................................................................................................1.5(4)
recommendation...................................................................................................1.5(4)
registered native title rights and interests...............................................................1.5(4)
relevant land ........................................................................................................1.5(4)
page 145
Native Title (State Provisions) Bill 1999
Defined Terms
relevant provisions of the NTA...........................................................................3.48(2)
responsible Minister .............................................................................................1.5(4)
section 24MD(6B) matter .................................................................................... Sch. 3
specified...................................................................................2.39(5), 3.52(5), 4.34(5)
the allowed period ....................................................................2.30(1), 3.42(1), 4.25(1)
the Part 2 commencement day ..............................................................................1.2(3)
the Part 3 commencement day ..............................................................................1.2(4)
the trust amount ....................................................................................................... 5.9
written law ...........................................................................................................1.5(5)
page 146
Native Title (State Provisions) Bill 1999
Defined Terms
Defined terms in the NTA
[This is a list of terms used in this Act and defined in the Native Title Act 1993 of the
Commonwealth and the provisions where they are defined. The list is not part of the law.]
Defined term Provision of NTA
Aboriginal peoples .................................................................................................. 253
act........................................................................................................................... 226
affect....................................................................................................................... 227
approved determination of native title...................................................................... 253
arbitral body............................................................................................................ 253
attributable.............................................................................................................. 239
Commonwealth Minister ........................................................................................ 253
future act ................................................................................................................ 233
Government party ................................................................................................... 253
interest ................................................................................................................... 253
land ........................................................................................................................ 253
mine........................................................................................................................ 253
native title .............................................................................................................. 223
native title claim group ........................................................................................... 253
native title holder ................................................................................................... 224
Native Title Registrar ............................................................................................. 253
native title rights and interests ................................................................................ 223
National Native Title Register ................................................................................ 253
NNTT ..................................................................................................................... 253
ordinary title .......................................................................................................... 253
permissible lease etc. .............................................................................................24IC
Register of Native Title Claims ............................................................................... 253
registered native title body corporate ...................................................................... 253
registered native title claimant ................................................................................ 253
representative body ................................................................................................. 253
State Minister ......................................................................................................... 253
valid ....................................................................................................................... 253
waters .................................................................................................................... 253
page 147
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