Native Title Act 1993

This Act may be cited as the Native Title Act 1993.

Commencement of provisions on Royal Assent

(1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.

Commencement of provisions by Proclamation

(2) Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

Forced commencement of provisions

(3) If a provision referred to in subsection (2) does not commence under that subsection within the period of 9 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3 Objects

Main objects

The main objects of this Act are:

(a) to provide for the recognition and protection of native title; and

(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and

(d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.

4 Overview of Act

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;

Intermediate period acts

(5) However, for certain acts (called intermediate period acts) done mainly before the judgment of the High Court in Wik 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 are previous 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

(aa) provides for the Federal Court to refer native title and compensation applications for mediation; and

(ab) provides for the Federal Court to make orders to give effect to terms of agreements reached by parties to proceedings including terms that involve matters other than native title; 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.

5 Act binds Crown

This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. However, nothing in this Act renders the Crown liable to be prosecuted for an offence.

6 Application to external Territories, coastal sea and other waters

This Act extends to each external Territory, to the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973.

7 Racial Discrimination Act

(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.

8 Effect of this Act on State or Territory laws

This Act is not intended to affect the operation of any law of a State or a Territory that is capable of operating concurrently with this Act.

8A Application of the Criminal Code

(1) Subject to subsection (2), Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2) Part 2.5 of the Criminal Code does not apply to an offence against Part 11 of this Act.

9 Definitions located in Part 15

Part 15 contains definitions of certain expressions that are used in this Act.

Part 2—Native Title

Division 1—Recognition and protection of native title

10 Recognition and protection of native title

Native title is recognised, and protected, in accordance with this Act.

11 Extinguishment of native title

(1) Native title is not able to be extinguished contrary to this Act.

Effect of subsection (1)

(2) An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title:

(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

(b) by validating past acts, or intermediate period acts, in relation to the native title.

13 Approved determinations of native title

Applications to Federal Court

(1) An application may be made to the Federal Court under Part 3:

(a) for a determination of native title in relation to an area for which there is no approved determination of native title; or

(b) to revoke or vary an approved determination of native title on the grounds set out in subsection (5).

Native title determinations by Federal Court when determining compensation entitlements

(2) If:

(a) the Federal Court is making a determination of compensation in accordance with Division 5; and

(b) an approved determination of native title has not previously been made in relation to the whole or part of the area concerned;

the Federal Court must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made.

Note: In these circumstances, the compensation application must be accompanied by the affidavit, and contain the information, that would be required for a native title determination application for the area: see subsection 62(3).

Approved determinations of native title

(3) Subject to subsection (4), each of the following is an approved determination of native title:

(a) a determination of native title made on an application under paragraph (1)(a) or in accordance with subsection (2);

(b) an order, judgment or other decision of a recognised State/Territory body that involves a determination of native title in relation to an area within the jurisdictional limits of the State or Territory.

Variation or revocation of determinations

(4) If an approved determination of native title is varied or revoked on the grounds set out in subsection (5) by:

(a) the Federal Court, in determining an application under Part 3; or

(b) a recognised State/Territory body in an order, judgment or other decision;

then:

(c) in the case of a variation—the determination as varied becomes an approved determination of native title in place of the original; and

(d) in the case of a revocation—the determination is no longer an approved determination of native title.

Grounds for variation or revocation

(5) For the purposes of subsection (4), the grounds for variation or revocation of an approved determination of native title are:

(a) that events have taken place since the determination was made that have caused the determination no longer to be correct; or

(b) that the interests of justice require the variation or revocation of the determination.

Review or appeal

(6) If:

(a) a determination of the Federal Court; or

(b) an order, judgment or other decision of a recognised State/Territory body;

is subject to any review or appeal, this section refers to the determination, order, judgment or decision as affected by the review or appeal, when finally determined.

High Court determinations

(7) A determination of native title by the High Court is an approved determination of native title.

Division 2—Validation of past acts

Subdivision AA—Overview of Division

13A Overview of Division

(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.

Subdivision A—Acts attributable to the Commonwealth

14 Validation of Commonwealth acts

(1) If a past act is an act attributable to the Commonwealth, the act is valid, and is taken always to have been valid.

Effect of validation of law

(2) To avoid any doubt, if a past act validated by subsection (1) is the making, amendment or repeal of legislation, subsection (1) does not validate:

(a) the grant or issue of any lease, licence, permit or authority; or

(b) the creation of any interest in relation to land or waters;

under any legislation concerned, unless the grant, issue or creation is itself a past act attributable to the Commonwealth.

15 Effect of validation on native title

(1) If a past act is an act attributable to the Commonwealth:

(a) if it is a category A past act other than one to which subsection 229(4) (which deals with public works) applies—the act extinguishes the native title concerned; and

(b) if it is a category A past act to which subsection 229(4) applies:

(i) in any case—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) if paragraph 229(4)(a) applies—the extinguishment is taken to have happened on 1 January 1994; and

(c) if it is a category B past 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 past act or a category D past act—the non‑extinguishment principle applies to the act.

Note: This subsection does not apply to the act if section 23C or 23G applies to the act.

(2) The extinguishment effected by this section does not by itself confer any right to eject or remove any Aboriginal persons who reside on or who exercise access over land or waters covered by a pastoral lease the grant, re‑grant or extension of which is validated by section 14.

16 Preservation of beneficial reservations and conditions

If:

(a) the 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 the act 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 15 affects that reservation or condition or those rights or interests.

17 Entitlement to compensation

Extinguishment case

(1) If the act attributable to the Commonwealth is a category A past act or a category B past act, the native title holders are entitled to compensation for the act.

Non‑extinguishment case

(2) If it is any other past act, the native title holders are entitled to compensation for the act if:

(a) the native title concerned is to some extent in relation to an onshore place and the act could not have been validly done on the assumption that the native title holders instead held ordinary title to:

(i) any land concerned; and

(ii) the land adjoining, or surrounding, any waters concerned; or

(b) the native title concerned is to some extent in relation to an offshore place; or

(c) the native title concerned relates either to land or to waters and the similar compensable interest test is satisfied in relation to the act.

Compensation for partial effect of act

(3) If the entitlement arises only because one, but not both, of paragraphs (2)(a) and (b) are satisfied, it is only an entitlement for the effect of the act on the native title in relation to the onshore place, or the offshore place, mentioned in the relevant paragraph.

Who pays compensation

(4) The compensation is payable by the Commonwealth.

18 Where just terms invalidity

Section applies if acquisition of property other than on just terms

(1) This section applies if the invalidity (disregarding section 14) of a past 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.

Subdivision B—Acts attributable to a State or Territory

19 State/Territory acts may be validated

(1) If a law of a State or Territory contains provisions to the same effect as sections 15 and 16, the law of the State or Territory may provide that past acts attributable to the State or Territory are valid, and are taken always to have been valid.

Effect of validation of law

(2) To avoid any doubt, if a past act validated by subsection (1) is the making, amendment or repeal of legislation, subsection (1) does not validate:

(a) the grant or issue of any lease, licence, permit or authority; or

(b) the creation of any interest in relation to land or waters;

under any legislation concerned, unless the grant, issue or creation is itself a past act attributable to the State or Territory.

20 Entitlement to compensation

Compensation where validation

(1) If a law of a State or Territory validates a past act attributable to the State or Territory in accordance with section 19, the native title holders are entitled to compensation if they would be so entitled under subsection 17(1) or (2) on the assumption that section 17 applied to acts attributable to the State or Territory.

Compensation where no validation

(2) Native title holders are entitled to compensation for the past act attributable to a State or Territory that, at the time when the claim for compensation is determined, has not been validated by the State or Territory in accordance with section 19.

Recovery of compensation

(3) The native title holders may recover the compensation from the State or Territory.

States or Territories may create compensation entitlement

(4) This section does not prevent a law of a State or Territory from creating an entitlement to compensation for a past act or for the validation of a past act.

Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth, State and Territory laws.

Division 2A—Validation of intermediate period acts etc.

Subdivision A—Overview of Division

21 Overview of Division

(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).

Subdivision B—Acts attributable to the Commonwealth

22A Validation of Commonwealth 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.

22B Effect of validation on native title

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.

22C Preservation of beneficial reservations and conditions

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.

22D Entitlement to compensation

(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.

22E Where “just terms” invalidity

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

22EA Requirement to notify: mining rights

(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

(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

(d) information about the way in which further details about the act may be obtained.

Subdivision C—Acts attributable to a State or Territory

22F State/Territory acts may be validated

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.

22G Entitlement to compensation

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.

22H Requirement to notify: mining rights

(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

(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

(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:

(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

(d) information about the way in which further details about the act may be obtained.

Division 2AA—Validation of transfers under New South Wales land rights legislation

22I Overview of Division

In summary, this Division allows New South Wales to validate certain transfers under the Aboriginal Land Rights Act 1983 of that State.

22J Validation of transfers

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

(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.

22K Effect of validation on native title

The non‑extinguishment principle applies to the acts.

22L Entitlement to compensation

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.

Division 2B—Confirmation of past extinguishment of native title by certain valid or validated acts

23A Overview of Division

(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.

23B Previous exclusive possession act

(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

(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.

23C Confirmation of extinguishment of native title by previous exclusive possession acts of Commonwealth

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.

23D Preservation of beneficial reservations and conditions

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.

23DA Confirmation of validity of use of certain land held by Crown etc.

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.

23E Confirmation of extinguishment of native title by previous exclusive possession acts of State or Territory

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.

23F Previous non‑exclusive possession act

(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

(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.

23G Confirmation of partial extinguishment of native title by previous non‑exclusive possession acts of Commonwealth

(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

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 sections 15 and 22B

(3) If this section applies to the act, sections 15 and 22B do not apply to the act.

23H Preservation of beneficial reservations and conditions

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.

23HA Notification

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, by legislative instrument, 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.

23I Confirmation of partial extinguishment of native title by previous non‑exclusive possession acts of State or Territory

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.

23J Compensation

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:

(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.

Division 3—Future acts etc. and native title

Subdivision A—Preliminary

24AA Overview

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 that affect 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 it being done and, at the time it is done, details of the agreement are on the Register of Indigenous Land Use Agreements. An indigenous land use agreement, details of which are on the Register, may also validate a future act (other than an intermediate period act) that has already been invalidly done.

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);

(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);

(fa) section 24JAA (public housing etc.);

(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).

24AB Order of application of provisions

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.

(3) However, if, apart from subsection (2), a future act could be covered, to any extent, by both section 24JAA and section 24KA, then:

(a) if the act is notified in accordance with subsections 24JAA(10) to (12), it is not covered, to that extent, by section 24KA; and

(b) if the act is not notified in accordance with subsections 24JAA(10) to (12), it is not covered, to that extent, by section 24JAA.

Note: This allows for things, such as the construction of roads and electricity transmission or distribution facilities, to be done under either Subdivision JA or Subdivision K when done in connection with housing or facilities covered by Subdivision JA.

24AC Regulations about notification

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).

Subdivision B—Indigenous land use agreements (body corporate agreements)

24BA Indigenous land use agreements (body corporate agreements)

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.

24BB Coverage of body corporate 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;

(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;

(eaa) 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.

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).

24BC Body corporate agreements only where bodies corporate for whole area

The agreement must not be made unless there are registered native title bodies corporate in relation to all of the area.

24BD Parties to body corporate agreements

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.

24BE Consideration and conditions

(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.

24BF Assistance to make body corporate agreements

(1) Persons wishing to make the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.

(2) The NNTT must not use or disclose information to which it has had access only because it has provided assistance in negotiating the agreement for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.

24BG Application for registration of body corporate agreements

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.

Registrar may assist parties

(3) The Registrar may give such assistance as he or she considers reasonable to help a party to the agreement prepare the application and accompanying material.

24BH Notice of body corporate agreements

Notice to persons who are not parties to an agreement

(1) The Registrar must give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:

(a) the Commonwealth Minister;

(b) 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;

(d) any local government body for the area covered by the agreement;

(e) any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate.

Content of notice

(2) The notice under subsection (1) must:

(a) identify the area covered by the agreement, whether by including a map or otherwise; and

(b) state the name of each party to the agreement and the address at which the party can be contacted; and

(i) any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b), (c) or (d) or 24EBA(1)(a); or

(ii) a summary of any statements included in the agreement that are of that kind, together with information about where further detail about the statements may be obtained.

Notice to specify day

(3) The notice under subsection (1) 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 subsection (1) 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 that subsection.

Notice to parties to the agreement

(5) The Registrar must give notice to the parties to the agreement of the notification day for the agreement that was specified in the notice under subsection (1).

24BI Registration of body corporate agreements

(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 notification day, 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 notification day, 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.

Subdivision C—Indigenous land use agreements (area agreements)

24CA Indigenous land use agreements (area agreements)

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.

24CB Coverage of area agreements