Titles Validation Amendment Act 1999 (WA)
| Western Australia |
Titles Validation Amendment Act 1999
No. 9 of 1999
An Act to amend the Titles Validation Act 1995.
[Assented to 5 May 1999]
The Parliament of Western Australia enacts as follows:
1. Short Title
| This Act may be cited as the Titles Validation Amendment Act 1999. |
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s. 2
2. Commencement
This Act comes into operation on the day on which it receives the Royal Assent.
3. The Act amended
| The amendments in this Act are to the Titles Validation Act 1995*. |
| [* Act No. 16 of 1995.] |
| Note: | The definitions in the Native Title Act 1993 of the Commonwealth (“the NTA”) apply also in the Titles Validation Act 1995 (see section 4(2) of the latter). There is attached to this Act a list of the words and expressions that are defined in the NTA and used in the provisions inserted in the principal Act by this Act. The list shows where in the NTA each definition can be found. |
4. Long title replaced
The long title is repealed and the following long title is inserted instead —
| “ |
An Act to make provision in relation to native title as permitted by the Native Title Act 1993 of the Commonwealth, namely —
| | under sections 19 and 22F of that Act, to validate past acts and intermediate period acts attributable to the State and to provide for the effects of the validation; |
| | under sections 23E and 23I of that Act, to confirm the effect on native title of acts attributable to the State done on or before 23 December 1996; and |
| | under section 212 of that Act, to confirm certain rights relating to natural resources and public access. |
”.
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5. Section 1 amended
Section 1 is amended by deleting “Validation” and inserting instead —
“ (Validation) and Native Title (Effect of Past Acts) ”.
6. Section 12 amended
Section 12(1) is amended by deleting “Native” and inserting instead —
“ Under section 20 of the NTA native ”.
7. Parts 2A, 2B and 2C inserted
After Part 2 the following Parts are inserted —
“
Part 2A — Validation of intermediate
period acts
| 12A. | Validation of intermediate period acts attributable to the State (s. 22F NTA) |
| Every intermediate period act attributable to the State is valid and is taken always to have been valid. |
Notes: The expression “intermediate period act” is defined in section 232A of the
NTA as an act that took place between 1 January 1994 and
23 December 1996 and that meets the various conditions set out in that
section.
Under section 22H of the NTA the State must within 6 months of the
commencement of this Act notify specified details relating to certain acts to
the public and to native title bodies and claimants in relation to the affected
land or waters. The details relate to mining rights granted between
1 January 1994 and 23 December 1996 in respect of land and waters that are
or were the subject of a freehold or leasehold grant or public work.
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| 12B. | Effect of validation — category A intermediate period acts consisting of grant of freehold and certain leases or vesting of land or waters (ss. 22F & |
| 22B(a) NTA) |
| (1) | A category A intermediate period act to which section 232B(2), (3) or (4) of the NTA applies extinguishes all native title in relation to the land or |
| waters concerned. | |
| (2) | Subsection (1) has effect subject to section 24EBA(6) of the NTA. |
Notes: The expression “category A intermediate period act” is defined in
section 232B of the NTA to mean (subject to that section) —
| | the grant or vesting of a freehold; |
| | the grant or vesting of a Scheduled interest; |
| | the grant or vesting of certain leaseholds (commercial leases, exclusive agricultural leases, exclusive pastoral leases, residential leases, community purposes leases, other leases (other than mining leases) that confer a right of exclusive possession, and in certain circumstances mining leases so far as they apply to certain developed land); and |
| | the construction or establishment of a public work (see section 12C of this Act). |
This section does not apply to an act if section 12I of this Act applies to it. section 24EBA of the NTA (see subsections (1)(a)(iii) and (6) of that section).
| 12C. | Effect of validation — category A intermediate period acts involving public works (ss. 22F & 22B(b) NTA) |
| (1) | A category A intermediate period act to which section 232B(7) of the NTA applies extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated. |
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| (2) | The extinguishment is taken to have happened when the construction or establishment began. |
| (3) | Subsection (1) has effect subject to section 24EBA(6) of the NTA. |
| Note: | This section does not apply to an act if section 12J of this Act applies to it. The effect of this section can be changed by an agreement that complies with section 24EBA of the NTA (see subsections (1)(a)(iii) and (6) of that section). |
| 12D. | Effect of validation — inconsistent category B intermediate period acts (ss. 22F & 22B(c) NTA) |
| (1) | A category B intermediate period act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned, extinguishes the native title to the extent of the inconsistency. |
| (2) | Subsection (1) has effect subject to section 24EBA(6) of the NTA. |
Notes: The expression “category B intermediate period act” is defined in
section 232C of the NTA as the grant of a lease that is not a category A
intermediate period act; but the definition does not include —
| | mining leases; and |
| | certain leases for the benefit of Aboriginal peoples and subleases derived from such leases. |
This section does not apply to an act if section 12I or 12M of this Act applies section 24EBA of the NTA (see subsections (1)(a)(iii) and (6) of that section).
to it.
| 12E. | Effect of validation — category C and category D intermediate period acts (ss. 22F & 22B(d) NTA) |
| (1) | The non-extinguishment principle applies to all category C and category D intermediate period acts. |
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| (2) | Subsection (1) has effect subject to section 24EBA(6) of the NTA. |
Notes: The expression “category C intermediate period act” is defined in
| “category D intermediate period act” is defined in section 232E of that Act as an intermediate period act that is not in category A, B or C. This section does not apply to an act if section 12M of this Act applies to it. | section 232D of the NTA as the grant of a mining lease; and the expression section 24EBA of the NTA (see subsections (1)(a)(iii) and (6) of that section). |
| 12F. | Preservation of beneficial reservations and conditions (ss. 22F & 22C NTA) |
| If — |
| (a) | an intermediate period act attributable to the State contains a reservation or condition for the benefit of Aboriginal peoples; or |
| (b) | the doing of an intermediate period act attributable to the State would affect rights or interests (other than native title rights and interests) of Aboriginal peoples (whether arising under legislation, at common law or in equity and whether or not rights of usage), |
nothing in section 12B, 12C, 12D or 12E affects that
reservation or condition or those rights or interests.
| 12G. | Compensation |
| (1) | Under section 22G of the NTA native title holders are entitled to compensation because of the validation by this Act of an intermediate period act attributable to the |
| State. | |
| (2) | The compensation is payable by the State. |
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| (3) | Compensation is to be determined in accordance with the principles contained in Division 5 of Part 2 of the NTA. |
| 12H. | Requirement to notify: tenures and reserves under the Land Act 1933 |
| (1) | This section applies to an intermediate period act attributable to the State — |
| (a) | consisting of — |
(i) the grant of a fee simple;
(ii) the grant of a lease, licence or easement; or
(iii) the creation, vesting or amendment of a reserve,
under the Land Act 1933; and
| (b) | that took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996. |
| (2) | The State must, before the end of 6 months after the commencement of the Titles Validation Amendment Act 1999, give notice containing the details set out in |
| subsection (3) in respect of each act to which this section applies to any — |
| (a) | registered native title body corporate; |
| (b) | registered native title claimant; and |
| (c) | representative Aboriginal/Torres Strait Islander body, |
in relation to any of the land or waters affected by the
act.
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| (3) | The details are — |
| (a) | the date on which the act was done; |
| (b) | sufficient information to enable the area affected by the act to be identified; and |
| (c) | information about the way in which further details about the act may be obtained. |
Part 2B — Confirmation of past extinguishment
of native title by certain valid or validated acts
| 12I. | Confirmation of extinguishment of native title by previous exclusive possession acts of State, other than public works (ss. 23E & 23C(1) NTA) |
| (1) | If an act is a previous exclusive possession act under section 23B(2) of the NTA (including because of section 23B(3)) and is attributable to the State — |
| (a) | where the act comprising the grant of a freehold estate or lease, apart from this Act, extinguishes native title rights and interests, the native title |
| rights and interests are extinguished in relation to the land or waters covered by the freehold estate or lease concerned; or | |
| (b) | where the act is — |
(i) a conditional purchase lease in force as at 23 December 1996 in Agricultural Areas in the South West Division under clauses 46 and 47 of the Land Regulations 1887 which includes a condition that the lessee reside on the area of the lease;
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(ii) a conditional purchase lease in force as at 23 December 1996 in an Agricultural Area under Part V of the Land Act 1898 which includes a condition that the
lessee reside on the area of the lease;
(iii) a conditional purchase lease in force as at 23 December 1996 of cultivatable land under Part V, Division (1) of the Land Act 1933 in respect of which habitual residence by the lessee is a statutory condition in accordance with the provisions of that Division;
(iv) a perpetual lease in force as at 23 December 1996 under the War Service Land Settlement Scheme Act 1954; or
(v) a previous exclusive possession act under section 23B (2) (a), (b) and (c) (ii), (iii), (iv), (v), (vii) or (viii) of the NTA (including because of section 23B (3)), provided that —
| (A) | in the case of any lease described in subparagraphs (iii), (iv), (v), (vii) or (viii) the lease concerned is in force as at 23 December 1996; and |
| (B) | in the case of any lease described in subparagraph (iv) the terms “exclusive agricultural lease” and “exclusive pastoral lease” have the meanings respectively given to them by section 247A (a) and 248A (a) of the NTA, |
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the act extinguishes any native title in relation
to the land or waters covered by the lease
concerned, and the extinguishment is taken to
have happened when the act was done; or
| (c) | in any other case, the non-native title rights and interests prevail over the native title rights and interests to the extent of any inconsistency, but do not extinguish them, while such non-native title right or interest made under the act, and any valid renewal, remaking, regranting or extension of the non-native title right or interest, is in force. |
| (2) | If this section applies to the act, sections 6, 8 and 12B do not apply to the act. |
| 12J. | Confirmation of extinguishment of native title by previous exclusive possession acts of State consisting of public works (ss. 23E & 23C(2) NTA) |
| (1) | If an act is a previous exclusive possession act under section 23B(7) of the NTA (which deals with public works) attributable to the State and the public work to |
| which the act relates still existed on 23 December 1996 — |
| (a) | the act extinguishes native title only in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) is situated; and |
| (b) | the extinguishment is taken to have happened when the construction or establishment of the public work began. |
| (2) | If this section applies to the act, sections 7 and 12C do not apply to the act. |
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| 12K. | Preservation of beneficial reservations and conditions (ss. 23E & 23D NTA) |
| If — |
| (a) | a previous exclusive possession act attributable to the State contains a reservation or condition for the benefit of Aboriginal peoples; or |
| (b) |
the doing of a previous exclusive possession act interests (other than native title rights and interests) of Aboriginal peoples (whether arising under legislation, at common law or in equity and whether or not rights of usage),
nothing in section 12I or 12J affects that reservation or
condition or those rights or interests.
| 12L. | Confirmation of validity of use of certain land held by Crown etc. (ss. 23E & 23DA NTA) |
| To avoid doubt, if an act is a previous exclusive possession act because of paragraph (b) of section 23B(9C) of the NTA (which deals with grants to the Crown etc.), the use of the land or waters concerned as mentioned in that paragraph is valid. |
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| 12M. | Confirmation of partial extinguishment of native title by previous non-exclusive possession acts of State (ss. 23I & 23G NTA) |
| (1) | Subject to subsection (2), if a previous non-exclusive possession act (see section 23F of the NTA) is attributable to the State — |
| (a) | to the extent that the act involves the grant of rights and interests that are not inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned, the rights and interests granted, and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them; |
| (b) | to the extent that the act involves the grant of rights and interests that are inconsistent with native title rights and 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. |
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| (2) | If the act is the grant of a pastoral lease or an agricultural lease to which section 6 applies, this section does not apply to the act. | |||||
| (3) | If this section applies to the act, sections 6, 8, 9, 12D and 12E do not apply to the act. | |||||
| Note: | Under section 23F of the NTA, the estates and interests to which this section applies are those arising from — | |||||
|
| 12N. | Preservation of beneficial reservations and conditions (ss. 23I & 23H NTA) |
| If — |
| (a) | a previous non-exclusive possession act attributable to the State contains a reservation or condition for the benefit of Aboriginal peoples; or |
| (b) | the doing of a previous non-exclusive possession act attributable to the State would affect rights or interests (other than native title rights and interests) of Aboriginal peoples (whether arising under legislation, at common law or in equity and whether or not rights of usage), |
nothing in section 12M affects that reservation or
condition or those rights or interests.
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| 12O. | Notification (ss. 23I & 23HA NTA) |
| In the case of a previous non-exclusive possession act to which section 23F(3)(c)(ii) of the NTA applies — |
| (a) |
notice must be given, in the way determined in any —
| (i) | representative Aboriginal/Torres Strait Islander bodies; |
(ii) registered native title bodies corporate; and
(iii) registered native title claimants,
in relation to the land or waters that will be
affected by the act, about the doing or proposed
doing of the act, or acts of that class, in relation
to the land or waters concerned; and
| (b) | they must be given an opportunity to comment on the act or class of acts. |
| Note: | The acts to which section 23F(3)(c)(ii) of the NTA applies are those giving effect after 23 December 1996 to arrangements made on or before that date in good faith, and evidenced in writing, for the grant of non-exclusive agricultural leases or non-exclusive pastoral leases. |
| 12P. | Compensation |
| (1) | Under section 23J of the NTA native title holders are entitled to compensation for any extinguishment under this Part of their native title rights and interests by an act, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act. |
| (2) | The compensation is payable by the State. |
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| (3) | Compensation is to be determined in accordance with the principles contained in Division 5 of Part 2 of the NTA. |
| Part 2C — Validation of future acts |
by agreement
| 12Q. | How future acts of State may be validated by agreement |
| Section 12R applies if — |
| (a) | details are on the Register of Indigenous Land Use Agreements of an agreement that includes a statement to the effect that the parties agree |
to —
(i) the validating of a particular future act (other than an intermediate period act), or of future acts (other than intermediate
period acts) included in classes, that have already been done invalidly; or
| (ii) | particular future act (other than an intermediate period act), or of future acts (other than intermediate period |
the validating, subject to conditions, of a already been done invalidly;
| (b) | the future act or class of acts is attributable to the State; |
| (c) | the State is a party to the agreement; and |
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| (d) | where, whether under the agreement or otherwise, a person other than the Crown in right of the Commonwealth or the State, is or may become liable to pay compensation in relation to the act or class of acts, that person is a party to the agreement. |
| 12R. | Validation |
| If the requirements of section 12Q are satisfied in respect of a future act or class of future acts — |
| (a) | the act is valid and is taken always to have been valid; or |
| (b) | all acts included in the class are valid and are taken always to have been valid, |
as the case may require.
| Note: | If an invalid future act is validated by section 12R — | |||
|
”.
8. Section 14 amended
| After section 14(d), the following paragraph is inserted — “ (da) stock routes; ”. |
Titles Validation Amendment Act 1999
List of defined words and expressions
This is a list of words and expressions used in the provisions inserted in the principal Act by this
Act (including in the notes) and defined in the Native Title Act 1993 of the Commonwealth.
Column 2 indicates the section of that Act in which each definition can be found. The list is not
part of this Act.
| 1. Word or expression | 2. NTA section |
Aboriginal peoples ..................................................................................................................... 253
act .............................................................................................................................................. 226
agricultural lease ........................................................................................................................ 247
attributable ................................................................................................................................. 239
category A intermediate period act ......................................................................................... 232B
category B intermediate period act ......................................................................................... 232C
category C intermediate period act ......................................................................................... 232D
category D intermediate period act ......................................................................................... 232E
commercial lease ....................................................................................................................... 246
Commonwealth Minister ........................................................................................................... 253
community purposes lease ...................................................................................................... 249A
exclusive agricultural lease ..................................................................................................... 247A
exclusive pastoral lease .......................................................................................................... 248A
extinguish ............................................................................................................................... 237A
future act .................................................................................................................................... 233
intermediate period act ........................................................................................................... 232A
land ............................................................................................................................................ 253
land or waters on which a public work is constructed, established or situated ....................... 251D
lease ........................................................................................................................................... 242
mining lease ............................................................................................................................... 245
native title .................................................................................................................................. 223
native title rights and interests ................................................................................................... 223
native title holder ....................................................................................................................... 224
non-extinguishment principle .................................................................................................... 238
past act ....................................................................................................................................... 228
pastoral lease ............................................................................................................................. 248
previous exclusive possession act ............................................................................................. 23B
previous non-exclusive possession act ....................................................................................... 23F
public work ................................................................................................................................ 253
representative Aboriginal/Torres Strait Islander body ............................................................... 253
Register of Indigenous Land Use Agreements .......................................................................... 253
registered native title body corporate ......................................................................................... 253
registered native title claimant ................................................................................................... 253
residential lease ......................................................................................................................... 249
Scheduled interest ................................................................................................................... 249C
valid ........................................................................................................................................... 253
waters ........................................................................................................................................ 253
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