Land Administration (South West Native Title Settlement) Act 2016 (WA)

Western Australia

Land Administration (South West Native Title Settlement) Act 2016

Western Australia

Land Administration (South West Native Title Settlement) Act 2016 Contents

Western Australia

Land Administration (South West Native Title Settlement) Act 2016

Land Administration (South West Native Title Settlement) Act 2016

An Act —

to provide for the conveyance of freehold title, the creation of reserves and the making of management orders in respect of reserves, and the grant of leasehold interests, for the benefit of the Noongar people; and

to provide for licences to enable the Noongar people to access, and carry out activities for Aboriginal Customary Purposes, on certain unallocated Crown land and unmanaged reserves,

and for related purposes.

Preamble

1.        The State has entered into agreements with the Noongar people for the settlement of all claims by the Noongar people in pending and future applications under the Native Title Act 1993 (Commonwealth) for the determination of native title and for compensation payable for acts affecting that native title.

2.        In exchange for compensation in the form of the payment and provision by the State of benefits under the agreements, the Noongar people consent —

• (a)

  to surrender any native title rights and interests that exist in relation to the areas of the State to which the agreements relate; and

• (b)

  to the validation of all acts that, historically, may have been done invalidly in relation to those areas.

3.        The compensation under the agreements also compensates the Noongar people for the loss, surrender, diminution, impairment and other effects on their native title rights and interests of all acts that have been done in relation to those areas.

4.        The benefits to be provided by the State under the agreements include —

• (a)

  the allocation of freehold land, leasehold land and reserved land to be held on trust for the benefit of the Noongar people; and

• (b)

  the grant of licences to enable the Noongar people to access, and carry out activities for Aboriginal Customary Purposes on, certain unallocated Crown land and unmanaged reserves.

5.        It is appropriate for the Parliament to legislate to enable the State to carry out its obligations under the agreements in relation to the provision of the benefits referred to in clause 4(a) and (b).

The Parliament of Western Australia enacts as follows:

Part 1 – Preliminary matters1.Short title

This is the Land Administration (South West Native Title Settlement) Act 2016.

2.Commencement

This Act comes into operation as follows —

• (a)

  sections 1 and 2 — on the day on which this Act receives the Royal Assent;

• (b)

  the rest of the Act — on a day fixed by proclamation.

3.Terms used

In this Act, unless the contrary intention appears —

Aboriginal Customary Purpose has the meaning given in the settlement terms Annexure O clause 1.1;

Crown land has the meaning given in the LAA section 3(1);

LAA means the Land Administration Act 1997;

land access licence means a licence in force under the LAA section 91 because of the operation of Part 4;

Land Base Strategy has the meaning given in the settlement terms clause 1.3;

Land Sub has the meaning given in the settlement terms clause 1.3;

licence amendment means an amendment to a land access licence other than an amendment to the Licence Area because of the settlement terms Annexure O clause 2.3, 2.4, 2.5 or 2.8;

Licence Area has the meaning given in the settlement terms Annexure O clause 1.1;

Licensee has the same meaning as in the settlement terms Annexure O;

Licensee’s Agents has the meaning given in the settlement terms Annexure O clause 1.1;

Licensee’s Members has the meaning given in the settlement terms Annexure O clause 1.1;

management order means an order made under the LAA section 46(1) placing the care, control and management of a reserve with the Land Sub;

Minister for Lands means the Minister as defined in the LAA section 3(1);

Noongar Land Estate has the meaning given in the settlement terms clause 1.3;

Regional Corporation means a Regional Corporation appointed under the Trust Deed clause 4 and includes a replacement Regional Corporation appointed under that clause;

reserve has the meaning given in the LAA section 3(1);

settlement ILUA means any of the following indigenous land use agreements under the Native Title Act 1993 (Commonwealth) section 24CA executed by the State on 8 June 2015 as in force from time to time for as long as the agreement continues in force —

• (a)

  Ballardong People Indigenous Land Use Agreement;

• (b)

  Gnaala Karla Booja Indigenous Land Use Agreement;

• (c)

  South West Boojarah #2 Indigenous Land Use Agreement;

• (d)

  Wagyl Kaip & Southern Noongar Indigenous Land Use Agreement;

• (e)

  Whadjuk People Indigenous Land Use Agreement;

• (f)

  Yued Indigenous Land Use Agreement;

Note for this definition:

Clause 17 of each settlement ILUA provides for the publication of the settlement ILUA as executed, and any variations to it, on the Agreements, Treaties and Negotiated Settlements database (ATNS) at and on relevant State and Government Party websites.

settlement terms means the document entitled “South West Settlement Terms” that is set out in Schedule 10 to a settlement ILUA;

Trust has the meaning given in the settlement terms clause 1.3;

Trust Deed has the meaning given in the settlement terms clause 1.3;

unallocated Crown land has the meaning given in the LAA section 3(1);

unmanaged reserve has the meaning given in the LAA section 3(1).

4.Notes not part of Act

A note set out at the foot of a provision of this Act is provided to assist understanding and does not form part of this Act.

5.Purposes

The purposes of this Act are —

• (a)

  to provide for the implementation of the Land Base Strategy for the purpose of establishing the Noongar Land Estate in accordance with the settlement terms; and

• (b)

  to provide for land access licences in accordance with the settlement terms.

6.Act binds Crown

This Act binds the State and, so far as the legislative power of the State permits, the Crown in all its other capacities.

7.Government Agreements Act 1979 does not apply

The Government Agreements Act 1979 does not apply to or in relation to any of the following regardless of whether the administration of this Act is for the time being committed by the Governor to, or approved by the Governor to be placed under the control of, the Minister administering that Act —

• (a)

  a settlement ILUA;

• (b)

  any variation of a settlement ILUA;

• (c)

  any document, instrument or other thing made, executed, issued or obtained for the purposes of a settlement ILUA or the implementation of a settlement ILUA.

Part 2 – General matters relating to LAA8.Functions and powers of Minister for Lands

• (1)

  The Minister for Lands has all the functions and powers necessary or convenient for the purposes of this Act.

• (2)

  Subsection (1) is not limited by Part 3 or 4.

9.Relationship with LAA

• (1)

  If there is an inconsistency between this Act and the LAA, this Act prevails to the extent of the inconsistency.

• (2)

  Without limiting subsection (1), the Land Administration Regulations 1998 regulations 4 and 12 do not apply in relation to any conveyance or transfer of the fee simple in Crown land for the purposes of implementing the Land Base Strategy.

Part 3 – Land Base Strategy10.Power of Minister for Lands to implement Land Base Strategy

• (1)

  The Minister for Lands may, on behalf of the State, do anything that is necessary or convenient to be done for the purposes of implementing the Land Base Strategy.

• (2)

  Subsection (1) applies in respect of the doing of a thing even if the LAA does not expressly or impliedly authorise the doing of the thing or that the LAA expressly or impliedly prohibits the doing of the thing.

• (3)

  In this section, a reference to the doing of a thing includes a reference to an omission to do a thing.

11.Exemption from transfer duty

Transfer duty is not payable under the Duties Act 2008 Chapter 2 in respect of any transfer or lease of land in accordance with the Land Base Strategy to the Trust or the Land Sub.

12.Compensation for revocation of management order

• (1)

  This section applies if a management order is revoked in the circumstances described in the Land Base Strategy clause 4(b).

• (2)

  The provision of alternative reserve land or compensation in accordance with the Land Base Strategy clause 4(b) is in addition to any compensation payable under the LAA section 51AA(3) or 204(1) in respect of the revocation.

• (3)

  The LAA section 204(2) does not apply in respect of the revocation.

[Section 12 amended: No. 4 of 2023 s. 125.]

Part 4 – Land access licencesDivision 1 – Grant and terms of licences13.Grant of licence

• (1)

  The Minister for Lands must grant to a Regional Corporation a licence in accordance with the settlement terms clause 13.1(b) or (d).

• (2)

  The LAA section 48(1) does not apply in respect of the grant of a licence under subsection (1).

• (3)

  A licence granted under subsection (1) is to be taken to be a licence granted under the LAA section 91(1).

14.Terms and conditions of licence

• (1)

  The terms and conditions of a land access licence are the terms and conditions set out in the settlement terms Annexure O and includes those terms and conditions as amended from time to time under section 15(1).

• (2)

  The LAA section 91(2)(a) to (c) do not apply in respect of a land access licence.

15.Amendment of licence

• (1)

  A land access licence can only be amended in accordance with the settlement terms.

• (2)

  The LAA section 91(2)(d) does not apply in respect of a land access licence.

16.Suspension or termination of licence

• (1)

  A land access licence can only be suspended or terminated in accordance with its terms and conditions.

• (2)

  The LAA section 91(3) does not apply in respect of a land access licence.

Division 2 – Legal effect of licences17.Approval for co‑existence of certain rights not required

• (1)

  The LAA does not prevent the simultaneous existence on the same area of Crown land of a land access licence and another right referred to in the LAA section 91(5).

• (2)

  For the purposes of subsection (1) an approval referred to in the LAA section 91(5) is not required.

18.Effect of licence on unallocated Crown land

Land does not cease to be unallocated Crown land because of the existence of a land access licence in respect of the land.

19.Effect of licence on creation of other interests

The creation, grant or exercise under any written law of an interest, right, title or power in respect of land is not affected by the existence, at the time of the creation, grant or exercise, of a land access licence in respect of the land.

20.Application of Property Law Act 1969

A land access licence is not property for the purposes of the Property Law Act 1969.

Division 3 – Parliamentary scrutiny of licence amendments21.Tabling and disallowance of licence amendment

• (1)

  The Minister for Lands must cause a licence amendment to be laid before each House of Parliament within 12 sitting days of the House after the day on which the licence amendment takes effect.

• (2)

  The Interpretation Act 1984 section 42(2) and (3) apply in relation to a licence amendment as if it were a regulation.

• (3)

  If a licence amendment is disallowed under this section or is not laid before both Houses of Parliament in compliance with this section, the relevant land access licence as it was in effect immediately before the licence amendment came into effect revives on and after the day of disallowance or the day following the last day for compliance.

• (4)

  The Minister for Lands must, as soon as is practicable, notify the holder of the relevant land use licence if a licence amendment is disallowed under this section or is not laid before both Houses of Parliament in compliance with this section.

Division 4 – Liability of State in respect of licences22.Acts or activities of Crown

Nothing done under this Part, or under a land access licence, is to be taken to be an act of the Crown or an activity undertaken by the Crown for the purposes of the LAA section 264(2)(a).

23.Entry and use of Licence Area

A Licensee under a land access licence, the Licensee’s Members and the Licensee’s Agents enter and use the Licence Area under the land access licence entirely at their own risk.

24.Occupier in relation to Licence Area

Nothing done under this Part is to be taken into account in determining (whether under the Occupiers’ Liability Act 1985, under the common law or otherwise) if the Crown is an occupier of a Licence Area.

25.Foreseeability of risk

Nothing done under this Part is to be taken into account in determining, for the purposes the Civil Liability Act 2002 section 5B(1)(a), if a risk was foreseeable.

Part 5 – Miscellaneous matters26.Regulations

The Governor may make regulations prescribing matters —

• (a)

  required or permitted to be prescribed by this Act; or

• (b)

  necessary or convenient to be prescribed for giving effect to this Act.

Part 6 – Land Administration Act 1997 amended27.Act amended

This Part amends the Land Administration Act 1997.

28.Section 91 amended

After section 91(6) insert:

• (7)

  The operation of this section is affected by the Land Administration (South West Native Title Settlement) Act 2016 Part 4.

Notes

This is a compilation of the Land Administration (South West Native Title Settlement) Act 2016 and includes amendments made by other written laws. For provisions that have come into operation see the compilation table.

Compilation table

Short title	Number and year	Assent	Commencement
Land Administration (South West Native Title Settlement) Act 2016	10 of 2016	16 May 2016	s. 1 and 2: 16 May 2016 (see s. 2(a)); Act other than s. 1 and 2: 6 Jun 2016 (see s. 2(b) and Gazette 27 May 2016 p. 1548)
Land and Public Works Legislation Amendment Act 2023 Pt. 4 Div. 6	4 of 2023	24 Mar 2023	10 Aug 2023 (see s. 2(b) and SL 2023/132 cl. 2)

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

Aboriginal Customary Purpose..................................................................................... 3

Crown land........................................................................................................................ 3

LAA.................................................................................................................................... 3

land access licence........................................................................................................... 3

Land Base Strategy.......................................................................................................... 3

Land Sub............................................................................................................................ 3

licence amendment.......................................................................................................... 3

Licence Area..................................................................................................................... 3

Licensee............................................................................................................................. 3

Licensee’s Agents............................................................................................................ 3

Licensee’s Members........................................................................................................ 3

management order........................................................................................................... 3

Minister for Lands........................................................................................................... 3

Noongar Land Estate....................................................................................................... 3

Regional Corporation...................................................................................................... 3

reserve................................................................................................................................ 3

settlement ILUA............................................................................................................... 3

settlement terms............................................................................................................... 3

Trust................................................................................................................................... 3

Trust Deed......................................................................................................................... 3

unallocated Crown land.................................................................................................. 3

unmanaged reserve.......................................................................................................... 3