Native Title Amendment Act 1998 (Cth)
This compilation was prepared on 1 September 2007
[Schedule 2 (item 16) amended item 43 of Schedule 2
Schedule 2 (item 16) commenced on 30 September 1998]
[Schedule 4 (items 34 and 35) amended subclause 14(3) of Schedule 5
Schedule 4 (item 36) repealed and substituted note to clause 26 of Schedule 5
Schedule 4 (items 34–36) commenced on 1 September 2007]
Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
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The Parliament of Australia enacts:
This Act may be cited as the
Native Title Amendment Act 1998 .
(1) Sections 1, 2 and 3 commence on the day on which this Act receives the Royal Assent.
(2) Subject to subsection (3), Part 1 of Schedule 3 commences on a day to be fixed by Proclamation.
(3) If Part 1 of Schedule 3 does not commence within the period of 9 months beginning on the day on which this Act receives the Royal Assent, that Part commences on the first day after the end of that period.
(4) Part 2 of Schedule 3 commences:
(a) on the first day after the end of the period of 12 months after the commencement of Part 1 of Schedule 3; or
(b) if, before the end of that period, a later day is fixed by Proclamation—on that later day.
(5) Subject to subsection (6), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.
(6) If a provision referred to in subsection (5) does not commence within the period of 9 months beginning on the day on which this Act receives the Royal Assent, that provision commences on the first day after the end of that period.
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
After “past acts”, insert “, and intermediate period acts,”.
Repeal the section, substitute:
Recognition and protection of native title
(1) This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.
Topics covered
(2) Essentially, this Act covers the following topics:
(a) acts affecting native title (see subsections (3) to (6));
(b) determining whether native title exists and compensation for acts affecting native title (see subsection (7)).
Kinds of acts affecting native title
(3) There are basically 2 kinds of acts affecting native title:
(a)
past acts (mainly acts done before this Act’s commencement on 1 January 1994 that were invalid because of native title); and(b)
future acts (mainly acts done after this Act’s commencement that either validly affect native title or are invalid because of native title).
Consequences of past acts and future acts
(4) For past acts and future acts, this Act deals with the following matters:
(a) their validity;
(b) their effect on native title;
(c) compensation for the acts.
Intermediate period acts
(5) However, for certain acts (called
intermediate period acts ) done mainly before the judgment of the High Court inWik Peoples v Queensland (1996) 187 CLR 1, that would be invalid because they fail to pass any of the future act tests in Division 3 of Part 2, or for any other reason because of native title, this Act provides for similar consequences to past acts.
Confirmation of extinguishment of native title
(6) This Act also confirms that many acts done before the High Court’s judgment, that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are
previous exclusive possession acts (see section 23B), the extinguishment is complete; if the acts areprevious non‑exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency.
Role of Federal Court and National Native Title Tribunal
(7) This Act also:
(a) provides for the Federal Court to make determinations of native title and compensation; and
(b) establishes a National Native Title Tribunal with power to:
(i) make determinations about whether certain future acts can be done and whether certain agreements concerning native title are to be covered by the Act; and
(ii) provide assistance or undertake mediation in other matters relating to native title; and
(c) deals with other matters such as the keeping of registers and the role of representative Aboriginal/Torres Strait Islander bodies.
Repeal the section, substitute:
(1) This Act is intended to be read and construed subject to the provisions of the
Racial Discrimination Act 1975 .(2) Subsection (1) means only that:
(a) the provisions of the
Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and(b) to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the
Racial Discrimination Act 1975 if that construction would remove the ambiguity.(3) Subsections (1) and (2) do not affect the validation of past acts or intermediate period acts in accordance with this Act.
Repeal the paragraph, substitute:
(a) in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc. and native title) of Part 2; or
After “past acts”, insert “, or intermediate period acts,”.
Repeal the heading, substitute:
Insert:
(1) In summary, this Division validates, or allows States and Territories to validate, certain acts that:
(a) took place before 1 January 1994; and
(b) would otherwise be invalid because of native title.
This Division also covers certain acts done after that day consisting of an extension or renewal etc. of an act done before that day.
(2) The acts validated are called
past acts ; they are defined in section 228.(3) This Division also sets out the effect of such validation on native title. The effect varies depending on the nature of the act. For this purpose, different categories of past act are defined by sections 229 to 232.
Add:
Note: This subsection does not apply to the act if section 23C or 23G applies to the act.
Repeal the Division, substitute:
(1) In summary, this Division validates, or allows States and Territories to validate, certain acts that:
(a) took place on or after 1 January 1994 but on or before 23 December 1996; and
(b) would otherwise be invalid to any extent because they fail to pass any of the future act tests in Division 3 of Part 2 or for any other reason because of native title.
(2) The acts are called
intermediate period acts ; they are defined in section 232A.(3) For this validation to apply, before the act was done, there must have been:
(a) a grant of a freehold estate or a lease (other than a mining lease); or
(b) a public work;
over any of the land or waters concerned.
(4) The Division also sets out the effect of such validation on native title. The effect varies depending on the nature of the act. For this purpose, different categories of intermediate period act are defined by sections 232B to 232E.
(5) The structure of the Division is very similar to that of Division 2 (which deals with validation of past acts).
If an intermediate period act is an act attributable to the Commonwealth, the act is valid, and is taken always to have been valid.
Subject to subsection 24EBA(6), if an intermediate period act is an act attributable to the Commonwealth:
(a) if it is a category A intermediate period act to which subsection 232B(2), (3) or (4) (which deal with things such as the grant or vesting of freehold estates and certain leases) applies—the act extinguishes all native title in relation to the land or waters concerned; and
(b) if it is a category A intermediate period act to which subsection 232B(7) (which deals with public works) applies:
(i) the act 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; and
(ii) the extinguishment is taken to have happened when the construction or establishment began; and
(c) if it is 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—the act extinguishes the native title to the extent of the inconsistency; and
(d) if it is a category C intermediate period act or a category D intermediate period act—the non‑extinguishment principle applies to the act.
Note: This section does not apply to the act if section 23C or 23G applies to the act.
If:
(a) an intermediate period act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or
(b) the doing of an intermediate period act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);
nothing in section 22B affects that reservation or condition or those rights or interests.
(1) If an intermediate period act is an act attributable to the Commonwealth, the native title holders are entitled to compensation for the act.
Who pays compensation
(2) The compensation is payable by the Commonwealth.
Section applies if acquisition of property other than on just terms
(1) This section applies if the invalidity (disregarding section 22A) of an intermediate period act attributable to the Commonwealth results from a paragraph 51(xxxi) acquisition of property by the Commonwealth from any person having been made otherwise than on paragraph 51(xxxi) just terms.
Entitlement to compensation
(2) The person is entitled to compensation from the Commonwealth for the acquisition in accordance with Division 5 and, if that compensation does not ensure that the acquisition is made on paragraph 51(xxxi) just terms, to such additional compensation from the Commonwealth as is necessary to ensure that it is.
(1) If:
(a) an act that is attributable to the Commonwealth consists of:
(i) the creation of a right to mine; or
(ii) the variation of such a right to extend the area to which it relates; or
(iii) the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and
(b) the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and
(c) at any time before the act was done, either:
(i) a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or
(ii) a public work was constructed or established on any of the land or waters affected by the act;
the Commonwealth must, before the end of 6 months after this section commences:
(d) give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and
(e) notify the public in the determined way of the details set out in subsection (2).
Details
(2) The details are:
(a) the date on which the act was done; and
(b) the kind of mining involved; and
(c) sufficient information to enable the area affected by the act to be identified; and
(d) information about the way in which further details about the act may be obtained.
If a law of a State or Territory contains provisions to the same effect as sections 22B and 22C, the law of the State or Territory may provide that intermediate period acts attributable to the State or Territory are valid, and are taken always to have been valid.
Compensation where validation
(1) If a law of a State or Territory validates an intermediate period act attributable to the State or Territory in accordance with section 22F, the native title holders are entitled to compensation.
Recovery of compensation
(2) The native title holders may recover the compensation from the State or Territory.
States or Territories may create compensation entitlement
(3) This section does not prevent a law of a State or Territory from creating an entitlement to compensation for an intermediate period act or for the validation of an intermediate period act.
Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth, State and Territory laws.
(1) If:
(a) an act that is attributable to a State or Territory consists of:
(i) the creation of a right to mine; or
(ii) the variation of such a right to extend the area to which it relates; or
(iii) the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and
(b) the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and
(c) at any time before the act was done, either:
(i) a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or
(ii) a public work was constructed or established on any of the land or waters affected by the act;
the State or Territory must, before the end of 6 months after the commencement of the law of the State or Territory that validates intermediate period acts attributable to the State or Territory in accordance with section 22F:
(d) give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and
(e) notify the public in the determined way of the details set out in subsection (2).
Details
(2) The details are:
(a) the date on which the act was done; and
(b) the kind of mining involved; and
(c) sufficient information to enable the area affected by the act to be identified; and
(d) information about the way in which further details about the act may be obtained.
In summary, this Division allows New South Wales to validate certain transfers under the
Aboriginal Land Rights Act 1983 of that State.
If:
(a) future acts consist of the transfer of lands under section 36 of the
Aboriginal Land Rights Act 1983 of New South Wales; and(b) the claims for the lands were made before 28 November 1994; and
(c) the acts took place before or take place after the commencement of this section; and
(d) the acts are not intermediate period acts; and
(e) the acts are invalid to any extent because of Division 3 of Part 2 or for any other reason, but would be valid to that extent if native title did not exist in relation to the lands;
a law of New South Wales may provide that the acts are valid, and are taken always to have been valid.
The non‑extinguishment principle applies to the acts.
Compensation where validation
(1) If a law of New South Wales validates the acts, the native title holders concerned are entitled to compensation.
Recovery of compensation
(2) The native title holders may recover the compensation from New South Wales.
Compensation to take into account rights etc. conferred by transferee
(3) The compensation is to take into account all rights, interests and other benefits conferred, in relation to the lands, on the native title holders by, or by virtue of membership of, the Aboriginal Land Council (within the meaning of the
Aboriginal Land Rights Act 1983 of New South Wales) to which the lands are transferred or by which the lands are held.
NSW may create compensation entitlement
(4) This section does not prevent a law of New South Wales from creating an entitlement to compensation for the acts or for their validation.
Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth and State legislation.
(1) In summary, this Division provides that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title.
(2) If the acts were
previous exclusive possession acts (involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession, or the construction or establishment of public works), the acts will have completely extinguished native title.(3) If the acts were
previous non‑exclusive possession acts (involving grants of non‑exclusive agricultural leases or non‑exclusive pastoral leases), they will have extinguished native title to the extent of any inconsistency.(4) This Division also allows States and Territories to legislate, in respect of certain acts attributable to them, to extinguish native title in the same way as is done under this Division for Commonwealth acts.
(1) This section defines
previous exclusive possession act .
Grant of freehold estates or certain leases etc. on or before 23.12.1996
(2) An act is a
previous exclusive possession act if:
(a) it is valid (including because of Division 2 or 2A of Part 2); and
Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.
(b) it took place on or before 23 December 1996; and
(c) it consists of the grant or vesting of any of the following:
(i) a Scheduled interest (see section 249C);
(ii) a freehold estate;
(iii) a commercial lease that is neither an agricultural lease nor a pastoral lease;
(iv) an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);
(v) a residential lease;
(vi) a community purposes lease (see section 249A);
(vii) what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to “1 January 1994” were instead a reference to “24 December 1996”;
(viii) any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.
Vesting of certain land or waters to be covered by paragraph (2)(c)
(3) If:
(a) by or under legislation of a State or a Territory, particular land or waters are vested in any person; and
(b) a right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation;
the vesting is taken for the purposes of paragraph (2)(c) to be the vesting of a freehold estate over the land or waters.
Construction of public works commencing on or before 23.12.1996
(7) An act is a
previous exclusive possession act if:
(a) it is valid (including because of Division 2 or 2A); and
(b) it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996.
Exclusion of acts benefiting Aboriginal peoples or Torres Strait Islanders
(9) An act is not a
previous exclusive possession act if it is:
(a) the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or
(b) the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or
(c) the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (a) or (b) is in effect in relation to the land or waters.
Note: The expression
Aboriginal peoples is defined in section 253.
Exclusion of national parks etc.
(9A) An act is not a
previous exclusive possession act if the grant or vesting concerned involves the establishment of an area, such as a national, State or Territory park, for the purpose of preserving the natural environment of the area.
Exclusion of acts where legislation provides for non‑extinguishment
(9B) An act is not a
previous exclusive possession act if it is done by or under legislation that expressly provides that the act does not extinguish native title.
Exclusion of Crown to Crown grants etc.
(9C) If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a
previous exclusive possession act :
(a) unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters; or
(b) if the grant or vesting does not, apart from this Act, extinguish native title in relation to the land or waters—unless and until the land or waters are (whether before or after 23 December 1996) used to any extent in a way that, apart from this Act, extinguishes native title in relation to the land or waters.
Exclusion by regulation
(10) The regulations may provide that an act is not a
previous exclusive possession act .
Effect of exclusions
(11) To avoid doubt, the fact that an act is, because of any of the previous subsections, not a previous exclusive possession act does not imply that the act is not valid.
Acts other than public works
(1) If an act is a previous exclusive possession act under subsection 23B(2) (including because of subsection 23B(3)) and is attributable to the Commonwealth:
(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 when the act was done.
Public works
(2) If an act is a previous exclusive possession act under subsection 23B(7) (which deals with public works) and is attributable to the Commonwealth:
(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.
Other extinguishment provisions do not apply
(3) If this section applies to the act, sections 15 and 22B do not apply to the act.
If:
(a) a previous exclusive possession act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or
(b) the doing of a previous exclusive possession act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);
nothing in section 23C affects that reservation or condition or those rights or interests.
To avoid doubt, if the act is a previous exclusive possession act because of paragraph 23B(9C)(b) (which deals with grants to the Crown etc.), the use of the land or waters concerned as mentioned in that paragraph is valid.
If a law of a State or Territory contains a provision to the same effect as section 23D or 23DA, the law of the State or Territory may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory.
(1) This section defines
previous non‑exclusive possession act .
Acts on or before 23.12.96
(2) An act is a
previous non‑exclusive possession act if:
(a) it is valid (including because of Division 2 or 2A of Part 2); and
Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.
(b) it takes place on or before 23 December 1996; and
(c) it consists of the grant of a non‑exclusive agricultural lease (see section 247B) or a non‑exclusive pastoral lease(see section 248B).
Acts after 23.12.96
(3) An act is also a
previous non‑exclusive possession act if:
(a) it takes place after 23 December 1996; and
(b) it would be a previous non‑exclusive possession act under subsection (2) if that subsection were not limited in its application to acts taking place on or before 23 December 1996; and
(c) it takes place:
(i) in exercise of a legally enforceable right created by any act done on or before 23 December 1996; or
(ii) in good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made.
Exclusion by regulation
(4) The regulations may provide that an act is not a
previous non‑exclusive possession act .
(1) Subject to subsection (2), if a previous non‑exclusive possession act (see section 23F) is attributable to the Commonwealth:
(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; and
(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 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) 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; and
(c) any extinguishment under this subsection is taken to have happened when the act was done.
Exclusion of certain acts
(2) If the act is the grant of a pastoral lease or an agricultural lease to which paragraph 15(1)(a) applies, this section does not apply to the act.
Effect on section s 1 5 and 22B
(3) If this section applies to the act, sections 15 and 22B do not apply to the act.
If:
(a) a previous non‑exclusive possession act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or
(b) the doing of a previous non‑exclusive possession act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);
nothing in section 23G affects that reservation or condition or those rights or interests.
In the case of a previous non‑exclusive possession act to which subparagraph 23F(3)(c)(ii) applies:
(a) notice must be given, in the way determined in writing by the Commonwealth Minister, to any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and 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.
If a law of a State or Territory contains provisions to the same effect as sections 23H and 23HA, the law of the State or Territory may make provision to the same effect as section 23G in respect of all or any previous non‑exclusive possession acts attributable to the State or Territory.
Entitlement
(1) The native title holders are entitled to compensation in accordance with Division 5 for any extinguishment under this Division 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.
Commonwealth acts
(2) If the act is attributable to the Commonwealth, the compensation is payable by the Commonwealth.
State and Territory acts
(3) If the act is attributable to a State or Territory, the compensation is payable by the State or Territory.
23JA Attribution of certain acts If:
(a) a previous exclusive possession act or a previous non‑exclusive possession act took place before the establishment of a particular State, the Jervis Bay Territory, the Australian Capital Territory or the Northern Territory; and
(b) the act affected land or waters that, when this section commences, form part of the State or Territory;
then, for the purposes of this Division, the act is taken to be attributable to:
(c) the State; or
(d) if the Territory is the Jervis Bay Territory—the Commonwealth; or
(e) if the Territory is the Australian Capital Territory or the Northern Territory—that Territory.
Note: The meaning given to the expression
attributable by section 239 will apply for the purposes of this Division to all other previous exclusive and non‑exclusive possession acts.
Future acts
(1) This Division deals mainly with future acts, which are defined in section 233. Acts that do not affect native title are not
future acts ; therefore this Division does not deal with them (see section 227 for the meaning of acts thataffect native title).
Validity of future acts
(2) Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not.
Validity under indigenous land use agreements
(3) A future act will be valid if the parties to certain agreements (called indigenous land use agreements—see Subdivisions B, C and D) consent to the act being done. A future act (other than an intermediate period act) that has already been done invalidly may also be validated as a result of such agreements.
Other bases for validity
(4) A future act will also be valid to the extent covered by any of the following:
(a) section 24FA (future acts where procedures indicate absence of native title);
(b) section 24GB (acts permitting primary production on non‑exclusive agricultural or pastoral leases);
(c) section 24GD (acts permitting off‑farm activities directly connected to primary production activities);
(d) section 24GE (granting rights to third parties etc. on non‑exclusive agricultural or pastoral leases);
(e) section 24HA (management of water and airspace);
(f) section 24IA (acts involving renewals and extensions etc. of acts);
(g) section 24JA (acts involving reservations, leases etc.);
(h) section 24KA (acts involving facilities for services to the public);
(i) section 24LA (low impact future acts);
(j) section 24MD (acts that pass the freehold test—but see subsection (5));
(k) section 24NA (acts affecting offshore places).
Right to negotiate
(5) In the case of certain acts covered by section 24IC (permissible lease etc. renewals) or section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a “right to negotiate”).
Extinguishment/non‑extinguishment; procedural rights and compensation
(6) This Division provides that, in general, valid future acts are subject to the non‑extinguishment principle. The Division also deals with procedural rights and compensation for the acts.
Activities etc. prevail over native title
(7) To avoid doubt, section 44H provides that a valid lease, licence, permit or authority, and any activity done under it, prevail over any native title rights and interests and their exercise.
Statutory access rights
(8) This Division confers access rights in respect of non‑exclusive agricultural and non‑exclusive pastoral leases on certain persons covered by registered native title claims (see Subdivision Q).
Indigenous land use agreement provisions
(1) To the extent that a future act is covered by section 24EB (which deals with the effect of indigenous land use agreements on future acts), it is not covered by any of the sections listed in paragraphs 24AA(4)(a) to (k).
Other provisions
(2) To the extent that a future act is covered by a particular section in the list in paragraphs 24AA(4)(a) to (k), it is not covered by a section that is lower in the list.
Note: It is important to know under which particular provision a future act is valid because the consequences in terms of compensation and procedural rights may be different.
The regulations may impose requirements to notify persons of acts, or classes of acts, that are to any extent valid under this Division (whether such notice is required to be given before or after the acts are done).
An agreement meeting the requirements of sections 24BB to 24BE is an
indigenous land use agreement .Note: Subdivisions C and D provide for other kinds of indigenous land use agreements.
The agreement must be about one or more of the following matters in relation to an area:
(a) the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes;
(aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done;
Note: Intermediate period acts are or can be validated only under Division 2A.
(ab) changing the effects, that are provided for by section 22B or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes;
(b) withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area;
(c) the relationship between native title rights and interests and other rights and interests in relation to the area;
(d) the manner of exercise of any native title rights and interests or other rights and interests in relation to the area;
(e) extinguishing native title rights and interests in relation to land or waters in the area by the surrender of those rights and interests to the Commonwealth, a State or a Territory;
(ea) compensation for any past act, intermediate period act or future act;
(f) any other matter concerning native title rights and interests in relation to the area.
Note 1: If the agreement involves consent to the doing of a future act or class of future act, or the doing of a future act or class of future act subject to conditions, it must include a statement to that effect: see paragraph 24EB(1)(b).
Note 2: If a future act covered by such a statement would otherwise be subject to the “right to negotiate” provisions in Subdivision P, the agreement must also include a statement that those provisions are not intended to apply: see paragraph 24EB(1)(c).
Note 3: If the agreement involves the extinguishment of native title by surrender, it must include a statement to that effect: see paragraph 24EB(1)(d).
The agreement must not be made unless there are registered native title bodies corporate in relation to all of the area.
Registered native title bodies corporate
(1) All of the registered native title bodies corporate in relation to the area must be parties to the agreement.
Governments
(2) If the agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, a State or a Territory as mentioned in paragraph 24BB(e), the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party.
Others
(3) Any other person or persons may be parties.
Procedure where no representative body party
(4) If there are any representative Aboriginal/Torres Strait Islander bodies for any of the area and none of them is proposed to be a party to the agreement, the registered native title body corporate, before entering into the agreement:
(a) must inform at least one of the representative Aboriginal/Torres Strait Islander bodies of its intention to enter into the agreement; and
(b) may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement.
(1) The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law).
Consideration may be freehold grant or other interests
(2) Without limiting subsection (1), the consideration may be the grant of a freehold estate in any land, or any other interests in relation to land whether statutory or otherwise.
Persons wishing to make the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.
Application
(1) Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.
Things accompanying application
(2) The application must be accompanied by a copy of the agreement and any other prescribed documents or information.
(1) The Registrar must:
(a) give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:
(i) the Commonwealth Minister;
(ii) if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;
(iii) any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;
(iv) any local government body for the area covered by the agreement;
(v) any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and
(b) notify the public in the determined way of the agreement in accordance with subsection (2).
Content of notice
(2) The notice under paragraph (1)(a) or (b) must:
(a) describe the area covered by the agreement; and
(b) state the name of each party to the agreement and the address at which the party can be contacted; and
(c) set out any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b), (c) or (d).
(1) Subject to this section, the Registrar must register the agreement on the Register of Indigenous Land Use Agreements.
(2) The Registrar must not register the agreement if any of the parties to the agreement advises the Registrar, within 1 month after the Registrar gives notice under section 24BH, that the party does not wish the agreement to be registered on the Register.
(3) The Registrar must not register the agreement if:
(a) a representative Aboriginal/Torres Strait Islander body for any of the area advises the Registrar, within 1 month after the Registrar gives notice under section 24BH, that the requirements of paragraph 24BD(4)(a) were not complied with in relation to the agreement; and
(b) the Registrar is satisfied that the requirements were not complied with.
An agreement meeting the requirements of sections 24CB to 24CE is an
indigenous land use agreement .Note: Subdivisions B and D provide for other kinds of indigenous land use agreements.
The agreement must be about one or more of the following matters in relation to an area:
(a) the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes;
(aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done;
Note: Intermediate period acts are or can be validated only under Division 2A.
(ab) changing the effects, that are provided for by section 22B or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes;
(b) withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area;
(c) the relationship between native title rights and interests and other rights and interests in relation to the area;
(d) the manner of exercise of any native title rights and interests or other rights and interests in relation to the area;
(e) extinguishing native title rights and interests in relation to land or waters in the area by the surrender of those rights and interests to the Commonwealth, a State or a Territory;
(ea) compensation for any past act, intermediate period act or future act;
(f) any other matter concerning native title rights and interests in relation to the area;
(g) any matter concerning rights conferred by Subdivision Q (which gives certain persons covered by registered native title claims rights of access to non‑exclusive agricultural and pastoral leases).
Note 1: If the agreement involves consent to the doing of a future act or class of future act, or the doing of a future act or class of future act subject to conditions, it must include a statement to that effect: see paragraph 24EB(1)(b).
Note 2: If a future act covered by such a statement would otherwise be subject to the “right to negotiate” provisions in Subdivision P, the agreement must also include a statement that those provisions are not intended to apply: see paragraph 24EB(1)(c).
Note 3: If the agreement involves the extinguishment of native title by surrender, it must include a statement to that effect: see paragraph 24EB(1)(d).
The agreement must not be made if there are registered native title bodies corporate in relation to all of the area.
Note: If there are registered native title bodies corporate for all of the area, an agreement under Subdivision B may be made.
Native title group to be parties
(1) All persons in the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement.
Native title group where registered claimant or body corporate
(2) If there is a registered native title claimant, or a registered native title body corporate, in relation to any of the land or waters in the area, the
native title group consists of:
(a) all registered native title claimants in relation to land or waters in the area; and
Note 1: Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of
registered native title claimant in section 253.Note 2: The agreement will bind all members of the native title claim group concerned: see paragraph 24EA(1)(b).
(b) all registered native title bodies corporate in relation to land or waters in the area; and
(c) if, for any part (the
non-claimed/determined part ) of the land or waters in the area, there is neither a registered native title claimant nor a registered native title body corporate—one or more of the following:(i) any person who claims to hold native title in relation to land or waters in the non-claimed/determined part;
(ii) any representative Aboriginal/Torres Strait Islander body for the non-claimed/determined part.
Native title group where no registered claimant or body corporate
(3) If subsection (2) does not apply, the
native title group consists of one or more of the following:
(a) any person who claims to hold native title in relation to land or waters in the area;
(b) any representative Aboriginal/Torres Strait Islander body for the area.
Other native title parties
(4) If the native title group is covered by subsection (2), one or more of the following may also be parties to the agreement:
(a) any other person who claims to hold native title in relation to land or waters in the area;
(b) any representative Aboriginal/Torres Strait Islander body for the area.
Government parties
(5) If the agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, a State or Territory as mentioned in paragraph 24CB(e), the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party.
Other parties
(6) Any other person may be a party to the agreement.
Procedure where no representative body party
(7) If there are any representative Aboriginal/Torres Strait Islander bodies for any of the area and none of them is proposed to be a party to the agreement, a person in the native title group, before entering into the agreement:
(a) must inform at least one of the representative Aboriginal/Torres Islander bodies of its intention to enter into the agreement; and
(b) may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement.
Note: The registration of agreements that are certified by a representative Aboriginal/Torres Strait Islander body is facilitated under section 24CK.
(1) The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law).
Consideration may be freehold grant or other interests
(2) Without limiting subsection (1), the consideration may be the grant of a freehold estate in any land, or any other interests in relation to land whether statutory or otherwise.
Persons wishing to make the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.
Application
(1) Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.
Things accompanying application
(2) The application must be accompanied by a copy of the agreement and any other prescribed documents or information.
Certificate or statement to accompany application in certain cases
(3) Also, the application must either:
(a) have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 202(4)(e) in relation to the area; or
(b) include a statement to the effect that the following requirements have been met:
(i) all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;
(ii) all of the persons so identified have authorised the making of the agreement;
Note: The word
authorise is defined in section 251A.together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.
(1) The Registrar must:
(a) give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:
(i) the Commonwealth Minister;
(ii) if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;
(iii) any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;
(iv) any local government body for the area covered by the agreement;
(v) any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and
(b) notify the public in the determined way of the agreement in accordance with subsection (2).
Content of notice
(2) The notice under paragraph (1)(a) or (b) must:
(a) describe the area covered by the agreement; and
(b) state the name of each party to the agreement and the address at which the party can be contacted; and
(c) set out any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b),(c) or (d); and
(d) include a statement that, within the period (the
notice period ) of 3 months after the notification day (see subsection (3)):(i) if the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a))—any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraphs 202(8)(a) and (b) were not satisfied in relation to the certification; or
(ii) if the application contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement)—any person claiming to hold native title in relation to land or waters in the area covered by the agreement may wish, in response to the notice, to make a native title determination application or equivalent application under a law of a State or Territory.
Notice to specify day
(3) The notice under paragraph (1)(a) or (b) must specify a day as the
notification day for the agreement. Each such notice in relation to the agreement must specify the same day.
Which days may be specified
(4) That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under paragraph (1)(a) or (b) in relation to the agreement will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs.
Making objections
(1) If the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)), any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraphs 202(8)(a) and (b) were not satisfied in relation to the certification.
Assistance in withdrawing objection
(2) If an objection is made within the notice period, the parties to the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating with the person making the objection with a view to having the objection withdrawn.
The Registrar must, after the end of the notice period, decide whether or not to register an agreement covered by an application under this Subdivision on the Register of Indigenous Land Use Agreements. However, in a case where section 24CL is to be applied, the Registrar must not do so until all persons covered by paragraph (2)(b) of that section are known.
Registration only if conditions satisfied
(1) If the application for registration of the agreement was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)) and the conditions in this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.
First condition
(2) The first condition is that:
(a) no objection under section 24CI against registration of the agreement was made within the notice period; or
(b) one or more objections under section 24CI against registration of the agreement were made within the notice period, but they have all been withdrawn; or
(c) one or more objections under section 24CI against registration of the agreement were made within the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the Registrar that the requirements of paragraphs 202(8)(a) and (b) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned.
Second condition
(3) The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement.
Matters to be taken into account
(4) In deciding whether he or she is satisfied as mentioned in paragraph (2)(c), the Registrar must take into account any information given in relation to the matter by:
(a) the persons making the objections mentioned in that paragraph; and
(b) the representative Aboriginal/Torres Strait Islander bodies that certified the application;
and may, but need not, take into account any other matter or thing.
Registration only if conditions satisfied
(1) If the application for registration of the agreement contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement), and the conditions in subsections (2) and (3) of this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.
First condition
(2) The first condition is that the following persons are parties to the agreement:
(a) any person who is, at the end of the notice period, a registered native title claimant or a registered native title body corporate in relation to any of the land or waters in the area covered by the agreement; and
(b) any person who, after the end of the notice period, becomes a registered native title claimant in relation to any of the land or waters in the area covered by the agreement, where the application containing the claim was made before the end of the notice period and:
(i) the claim is accepted by the Registrar for registration under subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy conditions equivalent to those set out in sections 190B and 190C under a law of a State or Territory; or
(ii) the claim is accepted by the Registrar for registration as a result of an application under subsection 190D(2), where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or
(iii) the claim is found to satisfy conditions equivalent to those set out in sections 190B and 190C under a provision of a law of a State or Territory to similar effect as section 190D, and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii) of this paragraph.
Second condition
(3) The second condition is that the Registrar considers that the requirements in paragraph 24CG(3)(b) (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement) have been met.
Matters to be taken into account
(4) In deciding whether the requirements have been met, the Registrar must take into account:
(a) the statements in the application; and
(b) any information the Registrar is given on the matter by any representative Aboriginal/Torres Strait Islander body or by any other body or person;
and may, but need not, take into account any other matter or thing.
An agreement meeting the requirements of sections 24DB to 24DF is an
indigenous land use agreement .Note: Subdivisions B and C provide for other kinds of indigenous land use agreements.
The agreement must be about one or more of the following matters in relation to an area:
(a) the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes;
(aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done;
Note: Intermediate period acts are or can be validated only under Division 2A.
(b) withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area;
(c) the relationship between native title rights and interests and other rights and interests in relation to the area;
(d) the manner of exercise of any native title rights and interests or other rights and interests in relation to the area;
(e) providing a framework for the making of other agreements about matters relating to native title rights and interests;
(ea) compensation for any past act, intermediate period act or future act;
(f) any other matter concerning native title rights and interests in relation to the area;
(g) any matter concerning rights conferred by Subdivision Q (which gives certain persons covered by registered native title claims rights of access to non‑exclusive agricultural and pastoral leases).
Note 1: If the agreement involves consent to the doing of a future act or class of future act, or the doing of a future act or class of future act subject to conditions, it must include a statement to that effect: see paragraph 24EB(1)(b).
Note 2: If a future act covered by such a statement would otherwise be subject to the “right to negotiate” provisions in Subdivision P, the agreement must also include a statement that those provisions are not intended to apply: see paragraph 24EB(1)(c).
The agreement must not provide for the extinguishment of any native title rights or interests.
Note: The non‑extinguishment principle will apply to any future acts consented to in the agreement: see subsection 24EB(3).
No bodies corporate for whole of area
(1) The agreement must not be made if there are registered native title bodies corporate in relation to all of the land and waters in the area.
Note: If there are registered native title bodies corporate for all of the area, an agreement under Subdivision B may be made.
Body corporate or representative body for area
(2) There must be at least one registered native title body corporate in relation to land or waters in the area or at least one representative Aboriginal/Torres Strait Islander body for the area.
Native title group and relevant governments to be parties
(1) All persons in the native title group (see subsection (2)) in relation to the area must be parties to the agreement, as must every relevant government (see subsection (3)).
Native title group
(2) The
native title group consists of:
(a) all registered native title bodies corporate in relation to land or waters in the area; and
(b) all representative Aboriginal/Torres Strait Islander bodies for the area.
Relevant government
(3) Each of the following is a
relevant government :
(a) the Commonwealth, if any of the area covered by the agreement is a place outside the jurisdictional limits of the States and Territories;
(b) a State or Territory, if any of the area covered by the agreement is within the jurisdictional limits of the State or Territory.
Other parties
(4) Any of the following may also be a party to the agreement:
(a) any registered native title claimant in relation to land or waters in the area;
Note 1: Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of
registered native title claimant in section 253.Note 2: The agreement will bind all members of the native title claim group concerned: see paragraph 24EA(1)(b).
(b) any other person who claims to hold native title in relation to land or waters in the area;
(c) any other person.
(1) The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law).
Consideration may be freehold grant or other interests
(2) Without limiting subsection (1), the consideration may be the grant of a freehold estate in any land, or any other interests in relation to land whether statutory or otherwise.
Persons wishing to make the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.
Application
(1) Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements.
Things accompanying application
(2) The application must be accompanied by a copy of the agreement and any other prescribed documents or information.
Notice to be given
(1) The Registrar must:
(a) give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:
(i) the Commonwealth Minister;
(ii) if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;
(iii) any local government body for the area covered by the agreement;
(iv) any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and
(b) notify the public in the determined way of the agreement in accordance with subsection (2).
Content of notice
(2) The notice under paragraph (1)(a) or (b) must:
(a) describe the area covered by the agreement; and
(b) state the name of each party to the agreement and the address at which the party can be contacted; and
(c) set out any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b) or (c); and
(d) include a statement that, within the period (the
notice period ) of 3 months after the notification day (see subsection (3)), any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may:(i) obtain a copy of the agreement from the Registrar; and
(ii) object, in writing to the Registrar, against registration of the agreement on the ground that it would not be fair and reasonable to do so.
Notice to specify day
(3) The notice must specify a day as the
notification day for the agreement. Each such notice in relation to the agreement must specify the same day.
Which days may be specified
(4) That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under paragraph (1)(a) or (b) in relation to the agreement will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs.
Request for copy of agreement
(5) If a person claiming to hold native title in relation to any of the land or waters covered by the agreement requests a copy of the agreement, the Registrar must comply with the request.
Making objections
(1) Any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may make an application to the Registrar objecting against registration of the agreement on the ground that it would not be fair and reasonable to register the agreement.
Assistance in withdrawing objection
(2) If an objection is made within the notice period, the parties may request assistance from the NNTT or a recognised State/Territory body in negotiating with the person making the objection with a view to having the objection withdrawn.
The Registrar must, after the end of the notice period, decide whether or not to register the agreement on the Register of Indigenous Land Use Agreements.
Registration only if conditions satisfied
(1) If a condition in subsection (2) is satisfied, the Registrar must register the agreement. If none of the conditions is satisfied, the Registrar must not register the agreement.
Conditions
(2) The conditions are that:
(a) no objection against registration of the agreement was made within the notice period; or
(b) one or more objections against registration of the agreement were made within the notice period, but they have all been withdrawn; or
(c) one or more objections against registration of the agreement were made during the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the NNTT or a recognised State/Territory body that it would not be fair and reasonable to register the agreement, having regard to:
(i) the content of the agreement; and
(ii) the effect of the agreement on native title rights and interests; and
(iii) any benefits provided under the agreement to current native title holders (whether or not identified at the time the agreement is made) and their successors, and the way in which those benefits are to be distributed; and
(iv) any other relevant circumstance.
Note: Sections 77A and 77B deal with applications to the NNTT objecting against registration of the agreement.
The regulations may provide for procedures and conditions for the registration of agreements under this Subdivision on the Register of Indigenous Land Use Agreements. Agreements are to be registered if either those procedures and conditions or the ones set out in sections 24DH to 24DL are complied with.
(1) While details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect, in addition to any effect that it may have apart from this subsection, as if:
(a) it were a contract among the parties to the agreement; and
(b) all persons holding native title in relation to any of the land or waters in the area covered by the agreement, who are not already parties to the agreement, were bound by the agreement in the same way as the registered native title bodies corporate, or the native title group, as the case may be.
Note: Section 199B specifies the details of the agreement that are required to be entered on the Register.
Only certain persons bound by agreement
(2) To avoid doubt, a person is not bound by the agreement unless the person is a party to the agreement or a person to whom paragraph (1)(b) applies.
Legislation etc. to give effect to agreement not affected
(3) If the Commonwealth, a State or a Territory is a party to an indigenous land use agreement whose details are entered in the Register of Indigenous Land Use Agreements, this Act does not prevent the Commonwealth, the State or the Territory doing any legislative or other act to give effect to any of its obligations under the agreement.
Coverage of section
(1) The consequences set out in this section apply if:
(a) a future act is done; and
(b) when it is done, there are on the Register of Indigenous Land Use Agreements details of an agreement that includes a statement to the effect that the parties consent to:
(i) the doing of the act or class of act in which the act is included; or
(ii) the doing of the act, or class of act in which the act is included, subject to conditions; and
(c) if the act is, apart from this Subdivision, an act to which Subdivision P (which deals with the right to negotiate) applies—the agreement also includes a statement to the effect that Subdivision P is not intended to apply; and
Note: The fact that, under the “right to negotiate” provisions in Subdivision P, agreements can be made after notice of an act is given as mentioned in section 29 does not prevent an indigenous land use agreement being made that consents to the doing of the act.
(d) if the act is the surrender of native title under an agreement covered by Subdivision B or C—the agreement also includes a statement to the effect that the surrender is intended to extinguish the native title rights and interests.
Validation of act
(2) The act is valid to the extent that it affects native title in relation to land or waters in the area covered by the agreement.
Non‑extinguishment principle
(3) Unless a statement of the kind mentioned in paragraph (1)(d) in relation to the act is included in the agreement, the non‑extinguishment principle applies to the act.
Restriction on compensation where Subdivision B agreement
(4) In the case of an agreement under Subdivision B, the following are not entitled to any compensation for the act under this Act, other than compensation provided for in the agreement:
(a) any registered native title body corporate who is a party to the agreement;
(b) any common law holder of native title:
(i) for whom such a registered native title body corporate holds native title rights and interests on trust; or
(ii) of whom such a registered native title body corporate is the agent or representative;
Note: For the definition of
common law holder , see section 56.(c) any native title holder who is entitled to any of the benefits provided under the agreement.
Restriction on compensation where Subdivision C agreement
(5) In the case of an agreement under Subdivision C, the following are not entitled to any compensation for the act under this Act, other than compensation provided for in the agreement:
(a) any native title holder who is entitled to any of the benefits provided under the agreement;
(b) any native title holder who authorised the making of the agreement as mentioned in:
(i) if the application was certified by representative Aboriginal/Torres Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph 202(8)(b); or
(ii) if the application included statements as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying all native title holders and ensuring that they have authorised the making of the agreement)—that paragraph.
Restriction on compensation where Subdivision D agreement
(6) In the case of an agreement under Subdivision D, no native title holder who is entitled to any of the benefits provided under the agreement is entitled to any compensation for the act under this Act, other than compensation provided for in the agreement.
Compensation under Division 5
(7) If any native title holder in relation to the land or waters covered by the agreement (except one who, because of subsection (4), (5) or (6), is not entitled to compensation other than that provided for in the agreement) would be entitled to compensation under subsection 17(2) for the act on the assumption that it was a past act referred to in that subsection:
(a) he or she is entitled, in accordance with Division 5, to compensation for the act; and
(b) he or she may recover the compensation from:
(i) if subparagraph (ii) does not apply—the Crown in right of the Commonwealth, a State or a Territory (according to whether the act is attributable to the Commonwealth, the State or the Territory); or
(ii) any person or persons who, under an agreement in writing with the Commonwealth, the State or the Territory, are liable to pay the compensation.
Coverage of section
(1) The consequences set out in this section apply 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) the validating of a particular future act (other than an intermediate period act), or future acts (other than intermediate period acts) included in classes, that have already been done invalidly; or
Note: Intermediate period acts are or can be validated only under Division 2A.
(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; or
(iii) changing the effects, that are provided for by section 22B (which relates to native title rights and interests) or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes; and
(b) whichever of the Commonwealth, the State or the Territory to which the act or class of acts is attributable is a party to the agreement; and
(c) where, whether under the agreement or otherwise, a person other than the Crown in right of the Commonwealth, a State or a Territory 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.
Commonwealth future acts valid
(2) If subparagraph (1)(a)(i) or (ii) applies and the future act or class of future acts is attributable to the Commonwealth, the act or class of acts is valid, and is taken always to have been valid.
State or Territory laws may validate their future acts
(3) If subparagraph (1)(a)(i) or (ii) applies and the future act or class of future acts is attributable to a State or Territory, a law of the State or the Territory may provide that the act or class of acts is valid, and is taken always to have been valid. The law may do so by applying to all acts, to classes of acts, or to particular acts, to which subparagraph (1)(a)(i) or (ii) applies in respect of which the requirements of subsection (1) are or become satisfied.
Non‑extinguishment principle applies to future acts
(4) If subsection (2) applies or a law makes provision in accordance with subsection (3), the non‑extinguishment principle applies to the act or class of acts unless:
(a) the act or class of acts is the surrender of native title; and
(b) the agreement includes a statement to the effect that the surrender is intended to have extinguished the native title rights and interests.
Compensation consequences of future acts
(5) If subsection (2) applies or a law makes provision in accordance with subsection (3), the consequences set out in subsection 24EB(4), (5) or (6), and the consequences set out in subsection 24EB(7), apply to the act or to each of the acts in the class.
Changing the effects of validated acts
(6) If subparagraph (1)(a)(iii) applies, the effects mentioned in that subparagraph are changed in accordance with the agreement.
The fact that this Subdivision deals with agreements with native title holders that relate to their native title rights and interests does not imply that the Commonwealth, a State or a Territory cannot:
(a) make other agreements; or
(b) legislate in relation to the making of other agreements;
with native title holders that relate to their native title rights and interests (other than agreements consenting to the doing of future acts).
(1) If an area is subject to section 24FA protection (see sections 24FB, 24FC and 24FD) at a particular time:
(a) any future act by any person in relation to the area that is done at that time is valid; and
(b) if such an act extinguishes native title to any extent—the native title holders are entitled to compensation, in accordance with Division 5, for the act in so far as it has that effect; and
(c) if the act mentioned in paragraph (a) does not so extinguish native title and the native title holders would be entitled to compensation under subsection 17(2) for the act on the assumption that it was a past act referred to in that subsection—they are entitled, in accordance with Division 5, to compensation for the act.
Who pays compensation
(2) The native title holders may recover the compensation from:
(a) if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or
(b) if the act is attributable to a State or Territory—the Crown in right of the State or Territory.
An area is
subject to section 24FA protection at a particular time if:
(a) before that time, a non‑claimant application (see section 253), or a corresponding application for an approved determination of native title under a law of a State or Territory, has been made by or on behalf of a Minister, the Crown in any capacity, or a statutory authority; and
(b) the area is the whole of the area covered by the application and the application has not been amended as to area; and
(c) the period specified in the notice given under section 66, or under a corresponding provision of the law of the State or Territory, has ended; and
(d) at the end of that period, there is no relevant native title claim (see section 24FE) covering the area or a part of the area; and
(e) the application has not been withdrawn, dismissed or otherwise finalised; and
(f) there is no entry on the National Native Title Register, included under paragraph 193(1)(a) or (b), specifying that native title exists in relation to the area or a part of the area.
An area is
subject to section 24FA protection at a particular time if:
(8) A lease under section 68A, 68B, 68C, 68D, 68E, 68F, 68G or 68H of the
Crown Lands Act 1931-1991 of the Northern Territory.(9) A lease under section 112A of the
Crown Lands Act 1931-1991 of the Northern Territory.(10) A lease under section 2 of the
Darwin Leases (Special Purposes) Ordinance 1946 of the Commonwealth or section 3 of theDarwin Short Term Leases Ordinance 1946 of the Commonwealth.(11) A lease under section 3 of the
Church Lands Leases Ordinance 1947 of the Commonwealth.(12) A lease under section 4 or 29A of the
Darwin Town Area Leases Act 1947-1979 of the Northern Territory. (13) A lease under section 16A, 16AA, 16B, 16C or 16D of the
Darwin Town Area Leases Act 1947-1979 of the Northern Territory.(14) A lease under section 5 of the
Crown Lands Act of the Northern Territory.
(1) This Schedule contains application and transitional provisions in relation to amendments made by this Act about:
(a) future acts (see Part 2); and
(b) native title determination applications etc. (see Parts 3 and 4); and
(c) various other matters (see Part 5).
(2) This Schedule also:
(a) deals with the effect of the failure to table a particular determination made under the old Act (see Part 6); and
(b) ensures that there will be compensation for the effect of this Act (see Part 7); and
(c) provides for the making of regulations for the purposes of this Act (see Part 8); and
(d) defines terms used in this Schedule (see Part 9).
Subject to this Schedule:
(a) the repeal of Division 3 of Part 2 of the old Act; and
(b) the insertion of Subdivisions A to P of Division 3 of Part 2 of the new Act; and
(c) any related amendments of the new Act;
by this Act apply to future acts taking place after the commencement of this Act.
3
Transitional—certain modified Subdivisions of Division 3 of Part 2 to have effect in period from 23.12.96 until commencement The old Act applies to future acts taking place after 23 December 1996 but before the commencement of this Act as if:
(a) Subdivisions G to K of Division 3 of Part 2 of the new Act (disregarding paragraph 24GE(1)(f)), and any related provisions of the new Act, were included in the old Act; and
(b) acts to which those Subdivisions apply were permissible future acts.
Old Act section 29 notices—section 28 satisfied or arbitral body application (1) If, before the commencement of the new “right to negotiate” provisions:
(a) a notice was given in relation to a future act under section 29 of the old Act; and
(b) apart from this subitem, the new “right to negotiate” provisions would apply in relation to the future act after the commencement of this Act; and
(c) either:
(i) the requirements of any of paragraphs 28(1)(a) to (f) of the old Act were satisfied; or
(ii) an application was made under section 35 of the old Act to an arbitral body and had not been withdrawn;
then, after the commencement of this Act, the old “right to negotiate” provisions continue to apply, despite the amendments made by this Act, in relation to the future act.
Old Act section 29 notices—old Act native title parties
(2) If:
(a) a notice under section 29 of the old Act was given in relation to a future act at least 2 months before the commencement of the new “right to negotiate” provisions; and
(b) apart from this subitem, the new “right to negotiate” provisions would apply in relation to the future act after the commencement of this Act; and
(c) subitem (1) does not apply to the future act;
then, after the commencement of this Act, the new “right to negotiate” provisions apply in relation to the future act as if:
(d) the only persons who were native title parties were those who were native title parties under the old Act; and
(e) the requirements of section 29 of the new Act had been complied with.
Old Act section 29 notices—expedited procedure
(3) If:
(a) before the commencement of the new “right to negotiate” provisions:
(i) a notice under section 29 of the old Act was given in relation to a future act; and
(ii) the notice included a statement that the Government party considered the act to be an act attracting the expedited procedure; and
(iii) an objection was lodged under subsection 32(3) of the old Act against the inclusion of the statement; and
(b) by the time the new “right to negotiate” provisions commenced, no determination had been made under section 32(4) of the old Act in relation to the objection; and
(c) apart from this subitem, the new “right to negotiate” provisions would apply in relation to the future act after the commencement of this Act;
then, after the commencement of this Act:
(d) the old “right to negotiate” provisions continue to apply, despite the amendments made by this Act, for the purpose of making the determination; and
(e) if the determination is that the act is not an act attracting the expedited procedure, the new “right to negotiate” provisions apply in relation to the future act as if:
(i) the only persons who were native title parties were those who were native title parties under the old Act; and
(ii) the requirements of section 29 of the new Act had been complied with.
Saving of old Act agreements and arbitral determinations (4) The amendments made by this Act do not affect any conditions in:
(a) an agreement of the kind mentioned in paragraph 31(1)(b) of the old Act; or
(b) a determination under section 38 of the old Act; or
(c) a declaration under section 42 of the old Act;
that was made before the commencement of this Act.
The table in item 6 sets out various situations that may exist in relation to an application that was given to the Native Title Registrar as mentioned in section 61 of the old Act, and certain consequences of the commencement of this Act.
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7 Case 3 in item 6—previously directed mediation conference If:
(a) an application that was made to the Native Title Registrar under section 61 of the old Act is taken to have been made to the Federal Court; and
(b) at or before the commencement of this Act, the President has directed the holding of a conference of the parties or their representatives under subsection 72(1) of the old Act, in respect of the whole or a part of the proceeding; and
(c) the Tribunal has not made a determination under section 73 or 160 of the old Act; and
(d) the Native Title Registrar has not lodged the application with the Federal Court under section 74 of the old Act;
then, for the purposes of the new Act, the Federal Court is taken to have referred the proceeding, or the part of the proceeding, to mediation under section 86B of the new Act. The Court is taken to have made the referral at the commencement of this Act.
8 Case 3 in item 6—application already with Federal Court If:
(a) an application that was made to the Native Title Registrar under section 61 of the old Act is taken to have been made to the Federal Court; and
(b) the Native Title Registrar has lodged the application with the Federal Court under section 74 of the old Act;
the Federal Court is taken to have made an order, under subsection 86C(1) of the new Act, that mediation cease in relation to the whole of the proceeding.
9 Case 3 in item 6—effect of section 24FA protection If case 3 in the table in item 6 applies to a non‑claimant application covering an area, the area:
(a) is taken to be subject to section 24FA protection (within the meaning of the new Act) unless and until:
(i) the area is covered by an entry in the National Native Title Register specifying that native title exists in relation to the area; or
(ii) the non‑claimant application is withdrawn or dismissed; and
(b) is taken to have been subject to section 24FA protection (within the meaning of the new Act) at all times since the end of the period of 2 months worked out under section 66 of the old Act.
10 Case 4 in item 6—effect of section 24FA protection If case 4 in the table in item 6 applies to an area, any part of the area:
(a) is taken to be subject to section 24FA protection (within the meaning of the new Act) unless and until that part of the area is covered by an entry in the National Native Title Register specifying that native title exists in relation to that part of the area; and
(b) is taken to have been subject to section 24FA protection (within the meaning of the new Act) at all times since the end of the period of 2 months worked out under section 66 of the old Act.
Pre‑commencement registered claims covered (1) This item sets out the consequences of the commencement of this Act in relation to a claim made in an application that was given to the Native Title Registrar as mentioned in section 61 of the old Act if, when this Act commenced, an entry recording details of the claim was on the Register of Native Title Claims.
Excluded case (2) However, the item does not apply if, before this Act commenced, an approved determination of native title had been made in relation to the application.
Section 190A to be applied, with expedited consideration, to applications before 27 June 1996 where section 29 notice
(3) If:
(a) the application was made before 27 June 1996; and
(b) a notice is given under section 29 of the new Act, or a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act or old Act, in relation to an act affecting any of the land or waters covered by the claim; and
(c) no such notice has previously been given in relation to an act affecting any of the land or waters covered by the claim;
the Registrar must:
(d) consider the claim under section 190A of the new Act; and
(e) use his or her best endeavours to finish doing so by the end of 4 months after the notice is given.
If he or she does not do so by that time, he or she must consider the claim under that section as soon as reasonably practicable afterwards.
Section 190A to be applied within one year to applications before 27 June 1996 where freehold estate or non-mining lease
(4) If:
(a) the application was made before 27 June 1996; and
(b) at the commencement of this Act, any part of the area covered by the claim is covered by a freehold estate or a lease (other than a mining lease);
the Registrar must:
(c) consider the claim under section 190A of the new Act; and
(d) use his or her best endeavours to finish doing so by the end of one year after the commencement of this Act.
If he or she does not do so by that time, he or she must consider the claim under that section as soon as reasonably practicable afterwards.
Section 190A to be applied to applications made on or after 27 June 1996 (5) If the application was made on or after 27 June 1996, the Registrar must consider the claim under section 190A of the new Act as soon as reasonably practicable.
Expedited section 190A consideration where section 29 notice
(6) If:
(a) either before the Registrar begins to consider the claim in accordance with subitem (4) or (5) or while the Registrar is doing so, a notice is given under section 29 of the new Act, or a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act, in relation to an act affecting any of the land or waters covered by the claim; and
Note: Subitem 14(4) deems determinations under subsection 43(1) of the old Act to be made under subsection 43(1) of the new Act for post‑commencement purposes.
(b) no such notice has previously been given in relation to an act affecting any of the land or waters covered by the claim;
the Registrar must use his or her best endeavours to finish considering the claim under section 190A of the new Act by the end of 4 months after the notice is given. If he or she does not do so by that time, he or she must consider the claim under that section as soon as reasonably practicable afterwards.
Order of consideration of claims affected by same section 29 notice
(7) If:
(a) a notice is given under section 29 of the new Act, or under a corresponding provision of a law of a State or Territory covered by a determination under subsection 43(1) of the new Act; and
(b) as a result of the giving of the notice, the Registrar is required by subitem (3) or (6), or by subitems (3) and (6), to consider 2 or more claims under section 190A of the new Act;
then the Registrar must consider the claims under that section in the order in which their details were entered on the Register of Native Title Claims.
Later information to be taken into account (8) In considering a claim in accordance with subitems (3) to (7), the Registrar must:
(a) in addition to having regard to information in accordance with subsection 190A(3) of the new Act, also have regard to any information provided by the applicant after the application was made; and
(b) apply section 190A of the new Act as if the conditions in sections 190B and 190C requiring that the application:
(i) contain or be accompanied by certain information or other things; or
(ii) be certified or have other things done in relation to it;
also allowed the information or other things to be provided, or the certification or other things to be done, by the applicant or another person after the application is made; and
(c) for the purposes of paragraphs (a) and (b) of this subitem, advise the applicant that the Registrar is considering the claim, and allow the applicant a reasonable opportunity to provide any further information or other things, or to have any things done, in relation to the application.
Removal of claim from Register if it fails test in section 190A of the new Act (9) If the claim does not satisfy all of the conditions in sections 190B and 190C of the new Act:
(a) the Registrar must remove the details of the claim from the Register and give written notice as required by subsection 190D(1); and
(b) the other provisions of sections 190A to 190D apply as if the notice mentioned in paragraph (a) were given under subsection 190D(1); and
(c) after the Registrar has complied with subitems (3) to (8) and this subitem (in so far as they are applicable), he or she is taken to have complied with section 190A.
Removal of claim from Register if it fails new State/Territory test
(10) If:
(a) a law of a State or Territory that deals with notifying the Registrar of claims for the purposes of paragraph 190(1)(c) of the old Act is amended so as to impose conditions for registration of claims equivalent to those set out in sections 190B and 190C of the new Act; and
(b) a recognised State/Territory body of the State or Territory notifies the Registrar that a specified claim, of which details are on the Register when the amendment commences, does not satisfy the new conditions in the law of the State or Territory;
the Registrar must remove the details of the claim from the Register.
Consequences of removal of claim—pre‑27 June 1996 cases
(11) If:
(a) the application was made before 27 June 1996; and
(b) under subitem (9) or (10), the Registrar removes the details of the claim from the Register;
then the new “right to negotiate” provisions (including as modified by Part 2 of this Schedule) or the old “right to negotiate” provisions, as the case requires, apply in relation to any act of which notice was given under section 29 of the old Act, or a provision of a law of a State or Territory that is equivalent to that section, as if the details of the claim had not been removed from the Register.
Consequences of removal of claim—27 June 1996 and later cases
(12) If:
(a) the application was made on or after 27 June 1996; and
(b) under subitem (9) or (10), the Registrar removes the details of the claim from the Register;
then the new “right to negotiate” provisions (including as modified by Part 2 of this Schedule) or the old “right to negotiate” provisions, as the case requires, apply in relation to:
(c) any act of which notice was given under section 29 of the old Act, or a provision of a law of a State or Territory that is equivalent to that section; and
(d) any act of which notice was given under section 29 of the new Act, or a provision of a law of a State or Territory that is equivalent to that section, before the removal of the details;
as if the details had never been entered in the Register.
Agreements and determinations are not affected
(13) Despite subitem (12), if:
(a) an agreement of the kind mentioned in paragraph 31(1)(b) of the new Act or of the old Act; or
(b) a determination under section 36A or 38 of the new Act or under section 38 of the old Act; or
(c) a declaration under section 42 of the new Act or of the old Act;
was made in relation to any of the acts mentioned in that subitem before the removal of details relating to the claim, the agreement, determination or declaration remains in effect after the removal of the details as if the subitem had not been enacted.
Note: This item is subject to any regulations that may be made under subsection 43(4) or 43A(11) of the new Act.
12 Transitional—State and Territory validation legislation If a law of a State or Territory made before the commencement of this Act contained provisions to the same effect as sections 15 and 16 of the old Act, the provisions continue to have that effect despite the amendments made by this Act.
The repeal of section 21 of the old Act by this Act does not apply to any agreement covered by that section that was made before the commencement of this Act.
14
Transitional—determinations, approvals, regulations etc. (1) Any determination made under paragraph 23(7)(c) of the old Act that is in force immediately before the commencement of this Act has effect after the commencement of this Act as if:
(a) it were a determination made under each of subsections 24MD(7) and 24NA(9) of the new Act; and
(b) it applied to the notification of registered native title claimants in relation to land or waters in the area concerned in the same way as it applied to notification of representative Aboriginal/Torres Strait Islander bodies for that area.
(2) Any approval of an act under paragraph 26(2)(e) of the old Act that is in force immediately before the commencement of this Act has effect after the commencement of this Act as if it were an approval under subparagraph 26(1)(c)(iv) of the new Act.
(3) If a determination of an act under paragraph 26(3)(b) of the old Act was in force immediately before the commencement of this Act, the new “right to negotiate” provisions do not apply to the act, until such time as the determination is revoked, by legislative instrument, by the Commonwealth Minister.
(4) Any determination made under subsection 43(1) of the old Act that is in force immediately before the commencement of this Act has effect after the commencement of this Act as if it were made under subsection 43(1) of the new Act.
(5) Any regulations made for the purposes of subsection 61(2) or 62(2) of the old Act that are in force immediately before the commencement of this Act have effect after the commencement of this Act as if they were made for the purposes of subsection 61(5) of the new Act.
(6) Any regulations made for the purposes of subsection 75(2) or section 76 of the old Act that are in force immediately before the commencement of this Act have effect after the commencement of this Act as if they were made for the purposes of section 76 of the new Act.
(7) The repeal of subsection 183(5) of the old Act by this Act does not apply to any delegation made under that subsection before the commencement of this Act.
(8) Any determination made under subsection 251(1) of the old Act has effect after the commencement of this Act as if it were made under subsection 207A(1) of the new Act.
(9) Any determination made under subsection 252(1) of the old Act for the purposes of subsection 29(3) or paragraph 66(2)(b) of the old Act that is in force immediately before the commencement of this Act has effect after the commencement of this Act as if it were a determination made for the purposes of subsection 29(3) or paragraph 66(3)(d), respectively, of the new Act.
Section 26D of the new Act has effect, in addition to its effect apart from this item, as if the reference in subparagraph 26D(1)(b)(ii) to “this Subdivision” included a reference to Subdivision B of Division 3 of Part 2 of the old Act.
If, at any time before the commencement of Subdivision Q of Division 3 of Part 2 of the new Act, an entry was made on the Register of Native Title Claims, then, for the purposes of that Subdivision, the persons who claimed to hold the native title concerned, and any others with whom those persons claimed to hold the native title, are taken to be persons included in the native title claim group in relation to the claim, for so long as the entry is on the Register.
(1) Section 24GC of the new Act applies to activities done at any time, whether before or after the commencement of that section.
(2) Section 44H of the new Act applies to the grant, issue or creation of a lease, licence, permit or authority at any time, whether before or after the commencement of that section.
18
Application of compensation limitation provision Section 51A of the new Act applies if the entitlement to the compensation concerned arose either before or after the commencement of that section.
Section 67 of the new Act applies to applications made either before or after the commencement of that section.
20
Application of native title determination provision Section 68 of the new Act applies:
(a) whether the first‑mentioned native title determination in that section is made before or after the commencement of that section; and
(b) whether the application that results in the second‑mentioned determination in that section is made before or after the commencement of that section.
Section 84C of the new Act applies where the main application mentioned in that section was made either before or after the commencement of that section. If the main application was made before the commencement, the reference in that section to section 61 or section 62 is a reference to section 61 or section 62 of the old Act.
Division 1A of Part 4, and any related provisions, of the new Act apply in relation to applications made either before or after the commencement of that Division or those provisions.
23
Transitional—assistance to native title claimants Despite subsection 183(6) of the new Act, if:
(a) before the commencement of that subsection, the Attorney‑General authorised the provision of assistance under section 183 of the old Act to a person claiming to hold native title to an area; and
(b) after the commencement of that subsection, the person applies under that section for the provision of further assistance in respect of the same claim;
section 183 of the new Act has effect in relation to the application as if subsection 183(6) were omitted.
24
Application of native title determination provision The repeal of section 225 of the old Act and insertion of section 225 in the new Act by this Act apply to all determinations made after the commencement of this Act, regardless of when any native title determination application (if relevant) was made.
25
Transitional—definition of registered native title claimant For the purposes of the definition of
registered native title claimant in the new Act, if, at the commencement of this Act, an entry relating to a claim is on the Register of Native Title Claims (other than an entry that had been amended under subsection 190(2) of the old Act to include details of a decision or determination), then, for so long as the entry remains on the Register, the person whose name appears in the entry as the person who is taken to be the claimant in relation to the claim is taken to be a person whose name appears in the entry as the applicant in relation to the claim.
(1) In this item:
amending determination means the determination made under the old Act on 12 December 1995 that purported to amend the original determination.
original determination means the determination made under the old Act on 24 December 1993 that, according to the determination, may be cited as Native Title (Notices) Determination No. 1 of 1993.
(2) If:
(a) before or after the commencement of this item, anything was or is done, or not done, in reliance or purported reliance on a notification or giving of notice; and
(b) the notification or giving of notice took place in the way set out in:
(i) the original determination; or
(ii) the original determination as amended by the amending determination;
then the doing of the thing, or failure to do the thing, is not ineffective, and is taken never to have been ineffective, for the purposes of the
Native Title Act 1993 merely because the original determination was not laid before each House of the Parliament within 15 sitting days of that House after its meeting.Note: Under section 214 of the
Native Title Act 1993 , as in force at the time the original determination was made, the original determination was a disallowable instrument for the purposes of section 46A of theActs Interpretation Act 1901 , as in force at that time, which meant that it was required under that Act, as then in force, to be tabled.
(1) If, apart from this item, the application of any of the provisions of this Act in any particular case would result in a paragraph 51(xxxi) acquisition of property of a person other than on paragraph 51(xxxi) just terms, the person is entitled to such compensation, or compensation in addition to any otherwise provided by the
Native Title Act 1993 , from:
(a) if the compensation is in respect of a future act attributable to a State or a Territory—the State or Territory; or
(b) in any other case—the Commonwealth;
as is necessary to ensure that the acquisition is made on paragraph 51(xxxi) just terms.
Federal Court’s jurisdiction (2) The Federal Court has jurisdiction with respect to matters arising under subitem (1) and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, regulations may be made for transitional measures in relation to the transition from the old Act to the new Act.
This Part defines terms used in this Schedule.
The
commencement of this Act is the time when this item commences.
(1) The
new Act is theNative Title Act 1993 , as amended at the commencement of this Act.(2) The
old Act is theNative Title Act 1993 , as in force immediately before the commencement of this Act (including as it applies in accordance with item 3).
32
Meaning of new “right to negotiate” provisions and old “right to negotiate” provisions (1) The
new “right to negotiate” provisions are the provisions in Subdivision P of Division 3 of Part 2 of the new Act.(2) The
old “right to negotiate” provisions are the provisions in Subdivision B of Division 3 of Part 2 of the old Act.
(1) An
(a) the application has been given to the Native Title Registrar under subsection 61(1) of the old Act; and
(b) the application is still being reviewed by the Registrar (see subitem (2)) or a presidential member (see subitem (3)).
(2) An application is being
reviewed by the Registrar if:
(a) the Registrar has not yet completed consideration of the application; or
(b) the Registrar has completed consideration of the application and:
(i) has formed an opinion mentioned in paragraph 63(1)(a) or (1)(b) or subsection 64(1) of the old Act; but
(ii) has not referred the application to a presidential member under subsection 63(2) or 64(1) of the old Act.
(3) An application is being
reviewed by a presidential member if:
(a) the Registrar has referred the application to a presidential member under subsection 63(2) or 64(1) of the old Act; and
(b) the presidential member has not completed consideration of the application.
34
Meaning of application is being reviewed by a court An
application is being reviewed by a court if:
(a) the presidential member has made a direction under paragraph 63(3)(c) or 64(2)(c) of the old Act; and
(b) either:
(i) the direction is the subject of a proceeding under the old Act before a court; or
(ii) the period during which an application for some form of review of the direction, or of a decision made on review of the direction, may be made has not yet finished.
An
application has been accepted if it has been accepted under section 63 or 64 of the old Act.
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Meaning of application is taken to have been made to Federal Court If an application is
taken to have been made to the Federal Court :
(a) the application is to be treated as if it were made to the Federal Court under the relevant provisions of the new Act; and
(b) the Native Title Registrar must give the application to the Federal Court, but section 63 of the new Act does not apply in relation to the application.
The
Registrar is giving notification if he or she has given notice of the application to a person whose interests may be affected by a determination but has not given, and is not taken to have given, notice to all such persons.
The
Registrar has given notification if he or she has given, or is taken to have given, notice of the application to all persons whose interests may be affected by a determination in relation to the application, under section 66 of the old Act.
The
section 66 period , for an application, means the period of 2 months worked out under section 66 of the old Act in relation to the application.
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Meaning of notification is taken to be for that application If, in relation to an application,
notification is taken to be for that application , the notification is to be treated as if it were notice of the application given, or taken to have been given, under section 66 of the new Act, that contained details of the application.
An application is
unopposed if the application is unopposed for the purposes of section 70 of the old Act.
An application is
not finalised if:
(a) the application is the subject of a proceeding before the NNTT, the Federal Court or the High Court; or
(b) a determination has been made in respect of the application but the normal application and review period defined in subsection 167(10) of the old Act has not finished.
If the
same people are the parties :
(a) any people who were parties to the application that was made to the Registrar under section 61 of the old Act are taken to be the parties to the application that is taken to have been made to the Federal Court under the relevant provisions of the new Act; and
(b) a person who notifies the Registrar under paragraph 68(2)(b) of the old Act, after the commencement of the new Act but within the period of 2 months worked out under section 66 of the old Act, is also a party.
Note: Other people may also become parties (see section 84 of the new Act).
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