Land Titles Validation (Amendment) Act 1998 (Vic)

Land Titles Validation (Amendment) Act 1998

Act No. 92/1998

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purpose	1
2.	Commencement	2

PART 2—LAND TITLES VALIDATION ACT 1994 3

3.	Principal Act	3
4.	Compensation	3
5.	New Parts 2A, 2B and 2C inserted	3
PART 2A—VALIDATION OF INTERMEDIATE PERIOD
ACTS	3

13A.	Validation of intermediate period acts attributable to
the State 3
13B.	Category A intermediate period acts that are not public
works 3
13C.	Category A intermediate period acts involving public
works 3
13D.	Inconsistent category B intermediate period acts 4
13E.	Category C and D intermediate period acts 4
13F.	Preservation of beneficial reservations and conditions 4
13G.	Compensation 5

PART 2B—CONFIRMATION OF PAST
EXTINGUISHMENT OF NATIVE TITLE BY CERTAIN

VALID OR VALIDATED ACTS	5
13H.	Confirmation of extinguishment by acts other than acts
consisting of public works 5
13I.	Confirmation of extinguishment by acts consisting of
public works 6
13J.	Preservation of beneficial reservations and conditions 6
13K.	Confirmation of validity of use of certain Crown land 7
13L.	Confirmation of partial extinguishment of native title
by previous non-exclusive possession acts 7
13M.	Preservation of beneficial reservations and conditions 8

i

Section Page

13N.	Notification	9
13O.	Compensation	9

PART 2C—VALIDATION OF FUTURE ACTS BY

AGREEMENT 10

13P.	How future acts may be validated	10
13Q.	Validation	11

PART 3—PIPELINES ACT 1967 12

6.	Principal Act	12
7.	Definitions	12
8.	Amendment of section 3A.	12
9.	New section 12AB substituted	13
12AB. Minister not to grant or vary permit unless certain

requirements met 13

10.	Amendment of section 20	13
11.	New sections 22 to 22E substituted	14

22.	Compulsory acquisition: private land	14
22A.	Compulsory acquisition: native title land	14
22B.	Referral of objections to Tribunal	16
22C.	Determination of Tribunal on objection	16
22D.	Disputed claims for compensation: native title land	17
22E.	Validity of pipeline permit	18

12.	New Part 6 inserted	18
PART 6—TRANSITIONAL	18

48. Application of Act as amended 18

PART 4—VICTORIAN CIVIL AND ADMINISTRATIVE

TRIBUNAL ACT 1998 20

13. Consequential amendment 20

═══════════════

NOTES 21

ii

Victoria

No. 92 of 1998

Land Titles Validation (Amendment)

Act 1998†

[Assented to 24 November 1998]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose

The main purpose of this Act is—

(a) to amend the Land Titles Validation Act 1994 to validate certain intermediate period acts and to confirm the effect on native title of certain acts; and

Land Titles Validation (Amendment) Act 1998

Act No. 92/1998 s. 2

(b) to amend the Pipelines Act 1967 for the purposes of the application of the Native Title Act 1993 of the Commonwealth.

2. Commencement

(1) This Part and Part 2 come into operation on the

day on which this Act receives the Royal Assent.

(2) Subject to sub-section (3), the remaining

provisions of this Act come into operation on a
day or days to be proclaimed.

(3) If a provision referred to in sub-section (2) does not come into operation before 1 August 1999, it comes into operation on that day.

_______________
Land Titles Validation (Amendment) Act 1998

s. 3 Act No. 92/1998

PART 2—LAND TITLES VALIDATION ACT 1994

3. Principal Act

No. 114/1994. In this Part, the Land Titles Validation Act 1994
is called the Principal Act.

4. Compensation

In section 13(1) of the Principal Act, for "Native title holders" substitute "Under section 20 of the Commonwealth Act, native title holders".

5. New Parts 2A, 2B and 2C inserted

After Part 2 of the Principal Act insert—

"PART 2A—VALIDATION OF INTERMEDIATE

PERIOD ACTS

13A. Validation of intermediate period acts

attributable to the State

Every intermediate period act attributable to the State is valid and is taken always to have been valid.

13B. Category A intermediate period acts that

are not public works

(1) A category A intermediate period act to which section 232B(2), (3) or (4) of the Commonwealth Act applies extinguishes

native title in relation to the land or waters
concerned.

(2) Sub-section (1) has effect subject to section 24EBA(6) of the Commonwealth Act.

13C. Category A intermediate period acts

involving public works

(1) A category A intermediate period act to

which section 232B(7) of the
Commonwealth Act applies extinguishes

Land Titles Validation (Amendment) Act 1998

Act No. 92/1998 s. 5

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.

(2) The extinguishment is taken to have

happened when the construction or
establishment began.

(3) Sub-section (1) has effect subject to section 24EBA(6) of the Commonwealth Act.

13D. Inconsistent category B intermediate period

acts

(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 native title to the
extent of the inconsistency.

(2) Sub-section (1) has effect subject to section 24EBA(6) of the Commonwealth Act.

13E. Category C and D intermediate period acts

(1) The non-extinguishment principle applies to

all category C and D intermediate period
acts.

(2) Sub-section (1) has effect subject to section 24EBA(6) of the Commonwealth Act.

13F. Preservation of beneficial reservations and

conditions

If—

(a) an intermediate period act attributable to the State contains a reservation or condition for the benefit of Aboriginal peoples; or

Land Titles Validation (Amendment) Act 1998

s. 5 Act No. 92/1998

(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 arising under legislation, at common law or in equity and whether or not rights of usage)—

nothing in section 13B, 13C, 13D or 13E
affects that reservation or condition or those

rights or interests.

13G. Compensation

(1) Under section 22G of the Commonwealth Act, 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.
(3) Compensation is to be determined in

accordance with the principles contained in Division 5 of Part 2 of the Commonwealth Act.

PART 2B—CONFIRMATION OF PAST

EXTINGUISHMENT OF NATIVE TITLE BY

CERTAIN VALID OR VALIDATED ACTS

13H. Confirmation of extinguishment by acts other than acts consisting of public works

(1) If an act is a previous exclusive possession

act under section 23B(2) of the
Commonwealth Act (including because of
section 23B(3)) and is attributable to the
State—

(a) the act extinguishes any native title in relation to the land or waters covered

Land Titles Validation (Amendment) Act 1998

Act No. 92/1998	s. 5
by the freehold estate, Scheduled interest or lease concerned; and

(b) the extinguishment is taken to have happened when the act was done.

(2) If this section applies to the act, sections 7, 9, 13B and 13D do not apply to the act.

13I. Confirmation of extinguishment by acts consisting of public works

(1) If an act is a previous exclusive possession	act under section 23B(7) of the 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 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 8 and 13C do not apply to the act.

13J. Preservation of beneficial reservations and

conditions

If—

(a)

a previous exclusive possession act reservation or condition for the benefit of Aboriginal peoples; or

(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 arising

Land Titles Validation (Amendment) Act 1998

s. 5	Act No. 92/1998
under legislation, at common law or in equity and whether or not rights of usage)—

nothing in section 13H or 13I affects that reservation or condition or those rights or interests.

13K. Confirmation of validity of use of certain

Crown land

To avoid doubt, if an act is a previous exclusive possession act because of paragraph (b) of section 23B(9C) of the Commonwealth Act (which deals with grants to the Crown etc.), the use of the land or waters concerned as mentioned in that paragraph is valid.

13L. Confirmation of partial extinguishment of

native title by previous non-exclusive
possession acts

(1) Subject to sub-section (2), if a previous non- exclusive possession act (see section 23F of the Commonwealth Act) 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 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;
(b)	to the extent that the act involves the grant of rights and interests that are inconsistent with native title rights and

Land Titles Validation (Amendment) Act 1998

Act No. 92/1998	s. 5
interests in relation to the land or waters covered by the lease 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

(ii) rights and interests are suspended
while the lease concerned, or the
lease as renewed, re-made, re-

in any other case, the native title and

(c)

any extinguishment under this sub- the act was done.

(2) If the act is the grant of a pastoral lease or an agricultural lease to which section 7 applies, this section does not apply to the act.

(3) If this section applies to the act, sections 7,

9, 10, 13D and 13E do not apply to the act.

13M. Preservation of beneficial reservations and

conditions

If—

(a)

a previous non-exclusive possession act 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 affect rights or interests (other than native title rights and interests) of
Aboriginal peoples (whether arising under legislation, at common law or in

Land Titles Validation (Amendment) Act 1998

s. 5	Act No. 92/1998
equity and whether or not rights of usage)—

nothing in section 13L affects that
reservation or condition or those rights or

interests.

13N. Notification

In the case of a previous non-exclusive possession act to which section 23F(3)(c)(ii) of the Commonwealth Act applies—

(a)	notice must be given, in the way determined in writing by the Commonwealth Minister, to any—
(i)	representative Aboriginal/Torres Strait Islander bodies; and
(ii)	registered native title bodies corporate; and

(iii) registered native title claimants—
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

(b) they must be given an opportunity to comment on the act or class of acts.

13O. Compensation

(1) Under section 23J of the Commonwealth

Act, native title holders are entitled to compensation for any extinguishment under this Part of their native title rights and interests by an act, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act.

Land Titles Validation (Amendment) Act 1998

Act No. 92/1998 s. 5

(2) The compensation is payable by the State.
(3) Compensation is to be determined in

accordance with the principles contained in Division 5 of Part 2 of the Commonwealth Act.

PART 2C—VALIDATION OF FUTURE ACTS

BY AGREEMENT

13P. How future acts may be validated

Section 13Q 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—
(i)	future act (other than an intermediate period act), or future acts (other than intermediate period acts) included in classes,

the validating of a particular invalidly; or

(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
already been done invalidly;

(b)	the future act or class of acts is attributable to the State; and
(c)	the State is a party to the agreement; and
(d)	where, whether under the agreement or otherwise, a person other than the

Land Titles Validation (Amendment) Act 1998

s. 5	Act No. 92/1998
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.

13Q. Validation

If the requirements of section 13P 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 valid; or
(b)	all acts included in the class are valid and are taken always to have been valid—

as the case may require.".

_______________
Land Titles Validation (Amendment) Act 1998

Act No. 92/1998 s. 6

PART 3—PIPELINES ACT 1967

6. Principal Act No. 7541.
Reprint No. 3

In this Part, the Pipelines Act 1967 is called the	as at 23 April
1998.
Principal Act.	Subsequently amended by
Nos 35/1998 and 46/1998.

7. Definitions

(1) In section 3 of the Principal Act insert—

' "Crown land" means land that is unalienated land of the Crown;

"Native Title Act" means the Native Title Act 1993 of the Commonwealth;

"native title land" means land in which native

title may exist;

"owner", when used in relation to native title land, means the native title holder of the land;

"Tribunal" means Victorian Civil and

Administrative Tribunal established by the
Victorian Civil and Administrative

Tribunal Act 1998.'.

(2) In section 3 of the Principal Act, for the definition

of "private land" substitute—

' "private land" means land that is not Crown

land or native title land;'.

8. Amendment of section 3A.

(1) In section 3A(1) of the Principal Act, after

' "native title",' insert ' "native title holder",'.

(2) In section 3A of the Principal Act, sub-section (2)

is repealed.

Land Titles Validation (Amendment) Act 1998

s. 9 Act No. 92/1998

9. New section 12AB substituted

For section 12AB of the Principal Act substitute—

"12AB. Minister not to grant or vary permit unless

certain requirements met

(1) If the proposed route or authorised route of a

pipeline to which an application under
section 12 or 12A relates is on private land
or native title land, the Minister must not
grant the application, or vary or alter the
proposed route or authorised route, unless
satisfied that—

(a)	in the case of private land, any necessary interests have been acquired by agreement with the owner or are to be acquired compulsorily, in accordance with section 22;
(b)	in the case of native title land, a relevant procedure1 under the Native Title Act has been followed.

(2) Compensation, interest, charges and

expenses incurred in acquiring interests, whether compulsorily or otherwise, or in following a relevant procedure referred to in
sub-section (1) are payable by the

applicant.".

10. Amendment of section 20

In section 20 of the Principal Act, for sub-section
(2) substitute—

"(2) Sub-section (1) does not authorise the

compulsory acquisition of native title rights
and interests.".

Land Titles Validation (Amendment) Act 1998

Act No. 92/1998 s. 11

11. New sections 22 to 22E substituted

For sections 22, 22A, 22B and 22C of the
Principal Act substitute—
"22. Compulsory acquisition: private land

(1) The permittee may, with the written permission of the Minister, acquire compulsorily any easement over any private

land.

(2) The Land Acquisition and Compensation

Act 1986 applies to a compulsory acquisition referred to in sub-section (1) and for that purpose—

(a) this Act is the special Act; and (b) the permittee is the Authority.

22A. Compulsory acquisition: native title land

(1) For the purposes of this Act, native title

rights and interests in native title land may be compulsorily acquired by the Minister.

(2) The Land Acquisition and Compensation

Act 1986 applies to a compulsory acquisition referred to in sub-section (1) and for that purpose—

(a) this Act is the special Act; and

(b) the Minister is the Authority.

(3) For the purposes of the acquisition of native

the Minister is authorised to comply with
any relevant procedure2 under the Native

title rights and interests in native title land, rights and interests.

(4) If the procedure under sub-section (6B) of

24MD of the Native Title Act applies and an objection is not made under paragraph (d) of

Land Titles Validation (Amendment) Act 1998

s. 11 Act No. 92/1998

that sub-section within 2 months after notice is given under that sub-section, the Minister may compulsorily acquire the native title

rights and interests.

(5) For the purposes of the application of the procedure under section 24MD(6B) of the Native Title Act in relation to the

compulsory acquisition, the Tribunal is the independent body for hearing an objection under
section 24MD(6B)(f) and sections 22B and

22C apply.

(6) If an objection is made under section

24MD(6B)(d) of the Native Title Act to a proposed compulsory acquisition of native title rights and interests and—

(a) all such objections are withdrawn; or

(b) within 5 months after notification under section 24MD(6B) of the Native Title Act of a proposed compulsory acquisition a request has not been made for the objection to be referred to the Tribunal—

the Minister may compulsorily acquire the native title rights and interests in the land.

(7) If an objection made under section

24MD(6B)(d) of the Native Title Act to a
proposed compulsory acquisition is referred
to the Tribunal and a determination made
that proposed compulsory acquisition
proceed, the Minister may, in accordance
with the determination, subject to this Act,
compulsorily acquire the native title rights
and interests.

Land Titles Validation (Amendment) Act 1998

Act No. 92/1998 s. 11

(8) If the Tribunal makes a determination that

the proposed compulsory acquisition not
proceed, or proceed subject to conditions, the
Minister must comply with that

determination except as permitted by sub-
paragraphs (i), (ii) and (iii) of section
24MD(6B)(g) of the Native Title Act.

22B. Referral of objections to Tribunal

(1) A person or body that makes an objection under section 24MD(6B)(d) of the Native Title Act to a proposed compulsory

acquisition of native title rights and interests
may request the Minister to refer the
objection to the Tribunal.

(2) A request must be made within 5 months

after notification under section 24MD(6B) of
the Native Title Act of the proposed
compulsory acquisition.

(3) If a request is made, the Minister must refer the objection to the Tribunal unless the compulsory acquisition.

(4) The Minister is a party to a proceeding in the Tribunal in respect of an objection.

22C. Determination of Tribunal on objection

(1) The Tribunal may make any of the following

determinations in respect of an objection
referred to it under section 22B—

(a)

a determination that the proposed the objection proceed; or

(b)

a determination that the proposed to conditions; or

Land Titles Validation (Amendment) Act 1998

s. 11 Act No. 92/1998

(c) a determination that the proposed compulsory acquisition not proceed.

(2) In making a determination, the Tribunal must take into account—

(a) compulsory acquisition on the

the likely impact of the proposed and interests; and

(b) the measures proposed to be taken to minimise that impact.

(3) For the avoidance of doubt, a determination

is not an order of the Tribunal for the purposes of the Victorian Civil and Administrative Tribunal Act 1998.

22D. Disputed claims for compensation: native

title land

(1) If native title rights and interests are

compulsorily acquired under section 22A determination and payment of compensation as if the grant were effected by a notice of acquisition under that Act and for that purpose—

and a lease, easement, licence or other
authority over the land granted to the
permittee, the Land Acquisition and

(a) this Act is the special Act;
(b) the permittee is the Authority.

(2) If the compensation payable to a person in

respect of the compulsory acquisition of
land, or interests in land, over which native
title may exist and to which this section
applies does not amount to compensation on
just terms, the person is entitled to such
additional compensation as is necessary to

Land Titles Validation (Amendment) Act 1998

Act No. 92/1998 s. 12

ensure that compensation is paid on just

terms.

(3) Compensation payable in respect of the

compulsory acquisition of land or interests to
which this section applies is payable by the

permittee.

22E. Validity of pipeline permit

A finding that the requirements of this Act or the Native Title Act have not been complied with in relation to any part of the authorised route of a pipeline in respect of which a

permit has been granted does not affect the
validity of the permit in respect of any other

part of the authorised route.".

12. New Part 6 inserted

After Part 5 of the Principal Act insert—

"PART 6—TRANSITIONAL

48. Application of Act as amended

(1) This Act as amended by the Land Titles

Validation (Amendment) Act 1998

applies—

(a) whether before or after the
commencement of section 12 of the

to an application made under this Act, Act 1998; and

(b) to the grant of a permit under this Act, whether the application for the permit was made before or after that

commencement; and

(c) to the alteration or variation of the authorised route of a pipeline, whether the application for the alteration or

Land Titles Validation (Amendment) Act 1998

s. 12	Act No. 92/1998
variation was made before or after that commencement.

(2) A notice under section 22 of this Act as in force before the commencement of section 12 of the Land Titles Validation

(Amendment) Act 1998 that was given by
the Minister on a date before that
commencement has effect as if it were a
notice given under section 6 of the Land
Acquisition and Compensation Act 1986

on that date.".

_______________
Land Titles Validation (Amendment) Act 1998

Act No. 92/1998 s. 13

PART 4—VICTORIAN CIVIL AND ADMINISTRATIVE

TRIBUNAL ACT 1998

13. Consequential amendment

In Schedule 1 to the Victorian Civil and insert—

"PART 15A—PIPELINES ACT 1967

51A. Unincorporated associations can be parties

(1) Section 61(1) does not apply to a proceeding under section 22B of the Pipelines Act 1967.

(2) An unincorporated association that is a party to a

proceeding under section 22B of the Pipelines Act
1967 has the same right to representation in the
proceeding as a body corporate.".

═══════════════
Land Titles Validation (Amendment) Act 1998

Notes Act No. 92/1998

NOTES

†

Minister's second reading speech—

Legislative Assembly: 28 October 1998

Legislative Council: 12 November 1998

The long title for the Bill for this Act was "to amend the Land Titles
Validation Act 1994 to validate, in accordance with the Native Title Act
1993 of the Commonwealth, certain intermediate period acts and to
confirm the effect on native title of certain acts, to amend the Pipelines
Act 1967 and the Victorian Civil and Administrative Tribunal Act

1998 and for other purposes."

1 S. 9: The relevant procedures under the Native Title Act 1993 of the

Commonwealth include—

(a) the procedure under an indigenous land use agreement under that

Act;

(b)	the procedure under section 24MD(6B) of that Act;
(c)	any other applicable procedure referred to in section 24AA of the

Act.

2 S. 11: See note 1.