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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Titles Validation Amendment Bill 1998
A Bill for
An Act to amend the Titles Validation Act 1995.
The Parliament of Western Australia enacts as follows:
1. Short Title
This Act may be cited as the Titles Validation Amendment
Act 1998.
page 1
28 -- 2
Titles Validation Amendment Bill 1998
s. 2
2. Commencement
This Act comes into operation on the day on which it receives
the Royal Assent.
3. The Act amended
5 The amendments in this Act are to the Titles Validation
Act 1995*.
[* Act No. 16 of 1995.]
Note: The definitions in the Native Title Act 1993 of the Commonwealth ("the NTA") apply
also in the Titles Validation Act 1995 (see section 4(2) of the latter). There is attached to
10 this Act a list of the words and expressions that are defined in the NTA and used in the
provisions inserted in the principal Act by this Act. The list shows where in the NTA
each definition can be found.
4. Long title replaced
The long title is repealed and the following long title is inserted
15 instead --
"
An Act to make provision in relation to native title as
permitted by the Native Title Act 1993 of the Commonwealth,
namely --
20 · under sections 19 and 22F of that Act, to validate
past acts and intermediate period acts attributable
to the State and to provide for the effects of the
validation;
· under sections 23E and 23I of that Act, to confirm
25 the effect on native title of acts attributable to the
State done on or before 23 December 1996; and
· under section 212 of that Act, to confirm certain
rights relating to natural resources and public
access.
30 ".
page 2
Titles Validation Amendment Bill 1998
s. 5
5. Section 1 amended
Section 1 is amended by deleting "Validation" and inserting
instead --
" (Validation) and Native Title (Effect of Past Acts) ".
5 6. Section 12 amended
Section 12(1) is amended by deleting "Native" and inserting
instead --
" Under section 20 of the NTA native ".
7. Parts 2A, 2B and 2C inserted
10 After Part 2 the following Parts are inserted --
"
Part 2A -- Validation of intermediate
period acts
12A. Validation of intermediate period acts attributable
15 to the State (s. 22F NTA)
Every intermediate period act attributable to the State
is valid and is taken always to have been valid.
Notes: The expression "intermediate period act" is defined in section 232A of the
NTA as an act that took place between 1 January 1994 and
20 23 December 1996 and that meets the various conditions set out in that
section.
Under section 22H of the NTA the State must within 6 months of the
commencement of this Act notify specified details relating to certain acts to
the public and to native title bodies and claimants in relation to the affected
25 land or waters. The details relate to mining rights granted between
1 January 1994 and 23 December 1996 in respect of land and waters that are
or were the subject of a freehold or leasehold grant or public work.
page 3
Titles Validation Amendment Bill 1998
s. 7
12B. Effect of validation -- category A intermediate
period acts consisting of grant of freehold and
certain leases or vesting of land or waters (ss. 22F &
22B(a) NTA)
5 (1) A category A intermediate period act to which
section 232B(2), (3) or (4) of the NTA applies
extinguishes all native title in relation to the land or
waters concerned.
(2) Subsection (1) has effect subject to section 24EBA(6)
10 of the NTA.
Notes: The expression "category A intermediate period act" is defined in
section 232B of the NTA to mean (subject to that section) --
· the grant or vesting of a freehold;
· the grant or vesting of a Scheduled interest;
15 · the grant or vesting of certain leaseholds (commercial leases,
exclusive agricultural leases, exclusive pastoral leases, residential
leases, community purposes leases, other leases (other than mining
leases) that confer a right of exclusive possession, and in certain
circumstances mining leases so far as they apply to certain developed
20 land); and
· the construction or establishment of a public work (see section 12C of
this Act).
This section does not apply to an act if section 12I of this Act applies to it.
The effect of this section can be changed by an agreement that complies with
25 section 24EBA of the NTA (see subsections (1)(a)(iii) and (6) of that section).
12C. Effect of validation -- category A intermediate
period acts involving public works (ss. 22F & 22B(b)
NTA)
(1) A category A intermediate period act to which
30 section 232B(7) of the NTA applies extinguishes the
native title in relation to the land or waters on which
the public work concerned (on completion of its
construction or establishment) was or is situated.
page 4
Titles Validation Amendment Bill 1998
s. 7
(2) The extinguishment is taken to have happened when
the construction or establishment began.
(3) Subsection (1) has effect subject to section 24EBA(6)
of the NTA.
5 Note: This section does not apply to an act if section 12J of this Act applies to it.
The effect of this section can be changed by an agreement that complies with
section 24EBA of the NTA (see subsections (1)(a)(iii) and (6) of that section).
12D. Effect of validation -- inconsistent category B
intermediate period acts (ss. 22F & 22B(c) NTA)
10 (1) A category B intermediate period act that is wholly or
partly inconsistent with the continued existence,
enjoyment or exercise of the native title rights and
interests concerned, extinguishes the native title to the
extent of the inconsistency.
15 (2) Subsection (1) has effect subject to section 24EBA(6)
of the NTA.
Notes: The expression "category B intermediate period act" is defined in
section 232C of the NTA as the grant of a lease that is not a category A
intermediate period act; but the definition does not include --
20 · mining leases; and
· certain leases for the benefit of Aboriginal peoples and subleases
derived from such leases.
This section does not apply to an act if section 12I or 12M of this Act applies
to it.
25 The effect of this section can be changed by an agreement that complies with
section 24EBA of the NTA (see subsections (1)(a)(iii) and (6) of that section).
12E. Effect of validation -- category C and category D
intermediate period acts (ss. 22F & 22B(d) NTA)
(1) The non-extinguishment principle applies to all
30 category C and category D intermediate period acts.
page 5
Titles Validation Amendment Bill 1998
s. 7
(2) Subsection (1) has effect subject to section 24EBA(6)
of the NTA.
Notes: The expression "category C intermediate period act" is defined in
section 232D of the NTA as the grant of a mining lease; and the expression
5 "category D intermediate period act" is defined in section 232E of that Act as
an intermediate period act that is not in category A, B or C.
This section does not apply to an act if section 12M of this Act applies to it.
The effect of this section can be changed by an agreement that complies with
section 24EBA of the NTA (see subsections (1)(a)(iii) and (6) of that section).
10 12F. Preservation of beneficial reservations and
conditions (ss. 22F & 22C NTA)
If --
(a) an intermediate period act attributable to the
State contains a reservation or condition for the
15 benefit of Aboriginal peoples; or
(b) the doing of an intermediate period act
attributable to the State would affect rights or
interests (other than native title rights and
interests) of Aboriginal peoples (whether
20 arising under legislation, at common law or in
equity and whether or not rights of usage),
nothing in section 12B, 12C, 12D or 12E affects that
reservation or condition or those rights or interests.
12G. Compensation
25 (1) Under section 22G of the NTA native title holders are
entitled to compensation because of the validation by
this Act of an intermediate period act attributable to the
State.
(2) The compensation is payable by the State.
page 6
Titles Validation Amendment Bill 1998
s. 7
(3) Compensation is to be determined in accordance with
the principles contained in Division 5 of Part 2 of the
NTA.
12H. Requirement to notify: tenures and reserves under
5 the Land Act 1933
(1) This section applies to an intermediate period act
attributable to the State --
(a) consisting of --
(i) the grant of a fee simple;
10 (ii) the grant of a lease, licence or easement;
or
(iii) the creation, vesting or amendment of a
reserve,
under the Land Act 1933; and
15 (b) that took place at any time during the period
from the beginning of 1 January 1994 until the
end of 23 December 1996.
(2) The State must, before the end of 6 months after the
commencement of the Titles Validation Amendment
20 Act 1998, give notice containing the details set out in
subsection (3) in respect of each act to which this
section applies to any --
(a) registered native title body corporate;
(b) registered native title claimant; and
25 (c) representative Aboriginal/Torres Strait Islander
body,
in relation to any of the land or waters affected by the
act.
page 7
Titles Validation Amendment Bill 1998
s. 7
(3) The details are --
(a) the date on which the act was done;
(b) sufficient information to enable the area
affected by the act to be identified; and
5 (c) information about the way in which further
details about the act may be obtained.
Part 2B -- Confirmation of past extinguishment
of native title by certain valid or validated acts
12I. Confirmation of extinguishment of native title by
10 previous exclusive possession acts of State, other
than public works (ss. 23E & 23C(1) NTA)
(1) If an act is a previous exclusive possession act under
section 23B(2) of the NTA (including because of
section 23B(3)) and is attributable to the State --
15 (a) the act extinguishes any native title in relation
to the land or waters covered by the freehold
estate, Scheduled interest or lease concerned;
and
(b) the extinguishment is taken to have happened
20 when the act was done.
(2) If this section applies to the act, sections 6, 8 and 12B
do not apply to the act.
Note: Under section 23B(2) and (3) of the NTA, the estates and interests to which
this section applies are those validly granted or vested on or before
25 23 December 1996 and consisting of --
· a Scheduled interest;
· a freehold estate (including what is taken by section 23B(3) to be a
freehold estate); and
page 8
Titles Validation Amendment Bill 1998
s. 7
· certain leaseholds (commercial leases, exclusive agricultural and
pastoral leases, residential leases, community purpose leases, other
leases (other than mining leases) that confer a right of exclusive
possession, and in certain circumstances mining leases so far as they
5 apply to certain developed land).
12J. Confirmation of extinguishment of native title by
previous exclusive possession acts of State consisting
of public works (ss. 23E & 23C(2) NTA)
(1) If an act is a previous exclusive possession act under
10 section 23B(7) of the NTA (which deals with public
works) and is attributable to the State --
(a) the act extinguishes native title in relation to the
land or waters on which the public work
concerned (on completion of its construction or
15 establishment) was or is situated; and
(b) the extinguishment is taken to have happened
when the construction or establishment of the
public work began.
(2) If this section applies to the act, sections 7 and 12C do
20 not apply to the act.
Note: Under section 23B(7) of the NTA, the public works to which this section
applies are those validly undertaken and commenced to be constructed or
established on or before 23 December 1996.
12K. Preservation of beneficial reservations and
25 conditions (ss. 23E & 23D NTA)
If --
(a) a previous exclusive possession act attributable
to the State contains a reservation or condition
for the benefit of Aboriginal peoples; or
page 9
Titles Validation Amendment Bill 1998
s. 7
(b) the doing of a previous exclusive possession act
attributable to the State would affect rights or
interests (other than native title rights and
interests) of Aboriginal peoples (whether
5 arising under legislation, at common law or in
equity and whether or not rights of usage),
nothing in section 12I or 12J affects that reservation or
condition or those rights or interests.
12L. Confirmation of validity of use of certain land held
10 by Crown etc. (ss. 23E & 23DA NTA)
To avoid doubt, if an act is a previous exclusive
possession act because of paragraph (b) of
section 23B(9C) of the NTA (which deals with grants
to the Crown etc.), the use of the land or waters
15 concerned as mentioned in that paragraph is valid.
12M. Confirmation of partial extinguishment of native
title by previous non-exclusive possession acts of
State (ss. 23I & 23G NTA)
(1) Subject to subsection (2), if a previous non-exclusive
20 possession act (see section 23F of the NTA) is
attributable to the State --
(a) to the extent that the act involves the grant of
rights and interests that are not inconsistent
with native title rights and interests in relation
25 to the land or waters covered by the lease
concerned, the rights and interests granted, and
the doing of any activity in giving effect to
them, prevail over the native title rights and
interests but do not extinguish them;
page 10
Titles Validation Amendment Bill 1998
s. 7
(b) to the extent that the act involves the grant of
rights and interests that are inconsistent with
native title rights and interests in relation to the
land or waters covered by the lease
5 concerned --
(i) if, apart from this Act, the act
extinguishes the native title rights and
interests, the native title rights and
interests are extinguished; and
10 (ii) in any other case, the native title rights
and interests are suspended while the
lease concerned, or the lease as
renewed, re-made, re-granted or
extended, is in force;
15 and
(c) any extinguishment under this subsection is
taken to have happened when the act was done.
(2) If the act is the grant of a pastoral lease or an
agricultural lease to which section 6 applies, this
20 section does not apply to the act.
(3) If this section applies to the act, sections 6, 8, 9, 12D
and 12E do not apply to the act.
Note: Under section 23F of the NTA, the estates and interests to which this section
applies are those arising from --
25 · non-exclusive agricultural leases and non-exclusive pastoral leases
validly granted on or before 23 December 1996;
· legally enforceable rights to the grant of such leases created on or
before that date but exercised after that date; and
· arrangements for the grant of such leases completed after that date but
30 made on or before that date in good faith and evidenced in writing.
page 11
Titles Validation Amendment Bill 1998
s. 7
12N. Preservation of beneficial reservations and
conditions (ss. 23I & 23H NTA)
If --
(a) a previous non-exclusive possession act
5 attributable to the State contains a reservation
or condition for the benefit of Aboriginal
peoples; or
(b) the doing of a previous non-exclusive
possession act attributable to the State would
10 affect rights or interests (other than native title
rights and interests) of Aboriginal peoples
(whether arising under legislation, at common
law or in equity and whether or not rights of
usage),
15 nothing in section 12M affects that reservation or
condition or those rights or interests.
12O. Notification (ss. 23I & 23HA NTA)
In the case of a previous non-exclusive possession act
to which section 23F(3)(c)(ii) of the NTA applies --
20 (a) notice must be given, in the way determined in
writing by the Commonwealth Minister, to
any --
(i) representative Aboriginal/Torres Strait
Islander bodies;
25 (ii) registered native title bodies corporate;
and
(iii) registered native title claimants,
page 12
Titles Validation Amendment Bill 1998
s. 7
in relation to the land or waters that will be
affected by the act, about the doing or proposed
doing of the act, or acts of that class, in relation
to the land or waters concerned; and
5 (b) they must be given an opportunity to comment
on the act or class of acts.
Note: The acts to which section 23F(3)(c)(ii) of the NTA applies are those giving
effect after 23 December 1996 to arrangements made on or before that date in
good faith, and evidenced in writing, for the grant of non-exclusive
10 agricultural leases or non-exclusive pastoral leases.
12P. Compensation
(1) Under section 23J of the NTA native title holders are
entitled to compensation for any extinguishment under
this Part of their native title rights and interests by an
15 act, but only to the extent (if any) that the native title
rights and interests were not extinguished otherwise
than under this Act.
(2) The compensation is payable by the State.
(3) Compensation is to be determined in accordance with
20 the principles contained in Division 5 of Part 2 of the
NTA.
page 13
Titles Validation Amendment Bill 1998
s. 7
Part 2C -- Validation of future acts
by agreement
12Q. How future acts of State may be validated by
agreement
5 Section 12R applies if --
(a) details are on the Register of Indigenous Land
Use Agreements of an agreement that includes
a statement to the effect that the parties agree
to --
10 (i) the validating of a particular future act
(other than an intermediate period act),
or of future acts (other than intermediate
period acts) included in classes, that
have already been done invalidly; or
15 (ii) the validating, subject to conditions, of a
particular future act (other than an
intermediate period act), or of future
acts (other than intermediate period
acts) included in classes, that have
20 already been done invalidly;
(b) the future act or class of acts is attributable to
the State;
(c) the State is a party to the agreement; and
(d) where, whether under the agreement or
25 otherwise, a person other than the Crown in
right of the Commonwealth or the State, is or
may become liable to pay compensation in
relation to the act or class of acts, that person is
a party to the agreement.
page 14
Titles Validation Amendment Bill 1998
s. 8
12R. Validation
If the requirements of section 12Q are satisfied in
respect of a future act or class of future acts --
(a) the act is valid and is taken always to have been
5 valid; or
(b) all acts included in the class are valid and are
taken always to have been valid,
as the case may require.
Note: If an invalid future act is validated by section 12R --
10 · under section 24EBA(4) of the NTA, the non-extinguishment
principle applies unless the act is the surrender of native title and the
agreement includes a statement to the effect that the surrender is
intended to extinguish native title; and
· under section 24EBA(5) of the NTA, the compensation entitlements
15 are determined in accordance with subsection (4), (5) or (6) and
subsection (7) of section 24EB of the NTA.
".
8. Section 14 amended
After section 14(d), the following paragraph is inserted --
20 " (da) stock routes; ".
page 15
Titles Validation Amendment Bill 1998
s. 8
List of defined words and expressions
This is a list of words and expressions used in the provisions inserted in the principal Act by this
Act (including in the notes) and defined in the Native Title Act 1993 of the Commonwealth.
Column 2 indicates the section of that Act in which each definition can be found. The list is not
part of this Act.
1. Word or expression 2. NTA section
Aboriginal peoples ............................................................................................................. 253
act ....................................................................................................................................... 226
agricultural lease ................................................................................................................ 247
attributable ......................................................................................................................... 239
category A intermediate period act ................................................................................. 232B
category B intermediate period act .................................................................................. 232C
category C intermediate period act .................................................................................. 232D
category D intermediate period act ................................................................................. 232E
commercial lease ................................................................................................................ 246
Commonwealth Minister ................................................................................................... 253
community purposes lease .............................................................................................. 249A
exclusive agricultural lease ............................................................................................. 247A
exclusive pastoral lease ................................................................................................... 248A
extinguish ........................................................................................................................ 237A
future act ............................................................................................................................ 233
intermediate period act .................................................................................................... 232A
land .................................................................................................................................... 253
land or waters on which a public work is constructed, established or situated ............... 251D
lease ................................................................................................................................... 242
mining lease ....................................................................................................................... 245
native title .......................................................................................................................... 223
native title rights and interests ........................................................................................... 223
native title holder ............................................................................................................... 224
non-extinguishment principle ............................................................................................ 238
past act ............................................................................................................................... 228
pastoral lease ...................................................................................................................... 248
previous exclusive possession act ..................................................................................... 23B
previous non-exclusive possession act .............................................................................. 23F
public work ........................................................................................................................ 253
representative Aboriginal/Torres Strait Islander body ....................................................... 253
Register of Indigenous Land Use Agreements ................................................................... 253
registered native title body corporate ................................................................................. 253
registered native title claimant ........................................................................................... 253
residential lease .................................................................................................................. 249
Scheduled interest ........................................................................................................... 249C
valid ................................................................................................................................... 253
waters ................................................................................................................................. 253
page 16
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