Part 1—Preliminary
1 Short title
This Act may be cited as the Native Title Act 1993.
2 Commencement
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
(c) to establish a mechanism for determining claims to native title; 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;
(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 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: The compensation application must contain the information that would be required for a native title determination application for the area: see section 62.
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; or
(c) that the determination relates to an area in relation to which the agreement required by paragraph 47C(1)(b) has been given.
Note: Section 47C provides for extinguishment of native title rights and interests in relation to certain areas such as national parks etc. to be disregarded.
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
(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.
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
(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.
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
(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.
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
(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.
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
(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.
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
(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.
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
(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 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:
(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.
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);
(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);
(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;
(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;
(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
(1) The agreement must not be made unless there are registered native title bodies corporate in relation to all of the area.
(2) If:
(a) there is an approved determination of native title to the effect that native title does not exist in relation to part of the area; or
(b) part of the area was expressly excluded from the area covered by an approved determination of native title because of subsection 61A(2) (restrictions on making of certain applications);
it is not necessary for there to be a registered native title body corporate for that part of the area in order to satisfy subsection (1).
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;
(c) any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;
(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
(c) set out:
(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
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;
(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;
(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).
24CC Requirement that no bodies corporate for whole of area
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.
24CD Parties to area agreements
Native title group to be parties
(1) All members of 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: 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.
(2A) The requirement that all registered native title claimants in relation to land or waters in the area be parties to the agreement is satisfied if, for each of those registered native title claimants:
(a) a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or
(b) if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement.
(2B) The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (2A)(a). A failure to comply with this subsection does not invalidate the agreement.
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 member of 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.
24CE 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.
24CF Assistance to make area 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 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.
24CG Application for registration of area 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.
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 203BE(1)(b) 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;
(iii) any conditions under section 251BA on the authority that relate to the making of the agreement have been satisfied;
together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.
Note: The word authorise is defined in section 251A.
Registrar may assist parties
(4) 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.
Certification not affected if Aboriginal/Torres Strait Islander body subsequently ceases to be recognised
(5) To avoid doubt, the certification of an application under Part 11 by a representative Aboriginal/Torres Strait Islander body is not affected merely because, after certification, the recognition of the body as the representative Aboriginal/Torres Strait Islander body for the area concerned is withdrawn or otherwise ceases to have effect.
24CH Notice of area agreements etc.
(1) If the Registrar is satisfied that an indigenous land use agreement that meets the requirements of sections 24CB to 24CE is in existence, 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) 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
(c) set out:
(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; 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 paragraph 203BE(5)(a), (b) or (c) 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.
24CI Objections against registration
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 paragraph 203BE(5)(a), (b) or (c) 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.
Information obtained to provide assistance not to be used or disclosed in other contexts
(3) The NNTT must not use or disclose information to which it has had access only because it provided assistance under subsection (2) for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.
24CJ Decision about registration
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.
24CK Registration of area agreements certified by representative bodies
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 paragraph 203BE(5)(a), (b) or (c) 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 to the Registrar 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.
24CL Registration of area agreements not certified by representative Aboriginal/Torres Strait Islander bodies
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 are parties to the agreement:
(a) any person who is, at the end of the notice period, a registered native title body corporate in relation to any of the land or waters in the area covered by the agreement; and
(aa) any applicant who is, at the end of the notice period, a registered native title claimant in relation to any of the land or waters in the area covered by the agreement; and
(b) any applicant 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 190F(1), where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or
(iia) the claim is accepted by the Registrar for registration as a result of notification given to the Registrar by the NNTT under section 190E on application under that section, 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 190E or 190F, and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii) of this paragraph.
(2A) The requirement that an applicant who is or becomes a registered native title claimant be a party to the agreement is satisfied if:
(a) a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or
(b) if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement.
(2B) The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (2A)(a). A failure to comply with this subsection does not invalidate the agreement.
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.
Subdivision D—Indigenous land use agreements (alternative procedure agreements)
24DA Indigenous land use agreements (alternative procedure agreements)
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.
24DB Coverage of alternative procedure 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).
24DC No extinguishment of native title
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).
24DD Bodies corporate and representative bodies etc.
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.
24DE Parties to alternative procedure agreements
Native title group and relevant governments to be parties
(1) All members of 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 named 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.
(5) A registered native title claimant is taken to be a party to the agreement if:
(a) a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or
(b) if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement.
(6) The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (5)(a). A failure to comply with this subsection does not invalidate the agreement.
24DF 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.
24DG Assistance to make alternative procedure agreements
(1) Persons wishing to make the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.
Information obtained in providing assistance not to be used or disclosed in other contexts
(2) The NNTT must not use or disclose information to which it has had access only because it 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.
24DH Application for registration of alternative procedure 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.
24DI Notice of alternative procedure agreements
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) 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
(c) set out:
(i) any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b) or (c) 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; 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.
24DJ Objections against registration
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.
Note: Section 77A sets out the material and fees that must accompany the application, and includes a requirement to state reasons why 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.
Information obtained in providing assistance not to be used or disclosed in other contexts
(3) The NNTT must not use or disclose information to which it has had access only because it provided assistance under subsection (2) for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.
24DK Decision about registration
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.
24DL Registration of alternative procedure 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.
24DM Other registration procedures and conditions
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.
Subdivision E—Effect of registration of indigenous land use agreements
24EA Contractual effect of registered agreement
(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.
24EB Effect of registration on proposed acts covered by indigenous land use agreements
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.
(2A) To avoid doubt, removal of the details of an agreement from the Register of Indigenous Land Use Agreements does not affect the validity of a future act done while the details were on the Register.
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 203BE(5)(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.
24EBA Effect of registration on previous acts covered by indigenous land use agreements
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.
Removal of agreement from the Register
(7) To avoid doubt, removal of the details of an agreement from the Register of Indigenous Land Use Agreements does not affect:
(a) the validity of a future act validated by subsection (2) or a law of a State or Territory mentioned in subsection (3); or
(b) the effects of an intermediate period act that have been changed under subsection (6).
24EC Agreements unrelated to future acts
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).
24ED Amended agreements
(1) If the details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect, for the purposes of this Act, as if the agreement included any amendments of the agreement that:
(a) have been agreed to by the parties to the agreement; and
(b) have been notified to the Registrar in writing by the parties;
but only so far as the amendments:
(c) update property descriptions, but not so as to result in the inclusion of any area of land or waters not previously covered by the agreement; or
(d) update a description identifying a party to the agreement, including where a party has assigned or otherwise transferred rights or liabilities under the agreement; or
(e) do a thing specified in a legislative instrument made under subsection (3).
(2) If the details of an agreement are entered on the Register of Indigenous Land Use Agreements, the agreement has effect, for the purposes of this Act, as if it did not include any amendments other than those that have effect because of subsection (1).
Note: An application for registration of such an agreement as amended could be made under Subdivision B, C or D.
Instrument specifying a thing
(3) The Commonwealth Minister may, by legislative instrument, specify a thing that an amendment to an agreement may do for the purposes of paragraph (1)(e).
Subdivision F—Future acts: if procedures indicate absence of native title
24FA Consequences if section 24FA protection applies
(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.
24FB When section 24FA protection arises—government applications
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.
24FC When section 24FA protection arises—non‑government applications
An area is subject to section 24FA protection at a particular time if:
(a) before that time, a non‑claimant application, or a corresponding application for an approved determination of native title under a law of a State or Territory, has been made; and
(b) the application is not covered by paragraph 24FB(a); and
(c) the area is the whole or a part of the area covered by the application; and
(d) 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
(e) either:
(i) at the end of that period, there is no relevant native title claim (see section 24FE) covering the area; or
(ii) after the end of that period, but before the particular time, all entries that relate to a relevant native title claim that covered the area are removed from the Register of Native Title Claims or cease to cover the area; and
(f) the application, in so far as it relates to that area, has not been withdrawn, dismissed or otherwise finalised; and
(g) 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.
24FD When section 24FA protection arises—entry on National Native Title Register
An area is subject to section 24FA protection at a particular time if it is covered by an entry on the National Native Title Register, included under paragraph 193(1)(a) or (b), specifying that no native title exists in relation to the area.
24FE Relevant native title claim
For the purposes of this Subdivision, there is a relevant native title claim covering an area at the end of the period mentioned in paragraph 24FB(c) or 24FC(d) if:
(a) at that time, there is an entry covering that area on the Register of Native Title Claims; or
(b) after that time, an entry covering that area is included on the Register of Native Title Claims, provided the application containing the claim was made before that time 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 190F(1) and the application was made not more than 28 days after the notice under subsection 190D(1) was given; or
(iia) the claim is accepted by the Registrar for registration as a result of notification given to the Registrar by the NNTT under section 190E on application under that section, 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 190E or 190F, and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii).
Subdivision G—Future acts and primary production
24GA Primary production activity
Primary production activity
(1) The expression primary production activity includes the following:
(a) cultivating land;
(b) maintaining, breeding or agisting animals;
(c) taking or catching fish or shellfish;
(d) forest operations (defined in section 253);
(e) horticultural activities (see section 253 for the definition of horticulture);
(f) aquacultural activities;
(g) leaving fallow or de‑stocking any land in connection with the doing of any thing that is a primary production activity.
Mining excluded
(2) The expression primary production activity does not include mining.
24GB Acts permitting primary production on non‑exclusive agricultural and pastoral leases
(1) This section applies to a future act if:
(a) a non‑exclusive agricultural lease (see section 247B) or non‑exclusive pastoral lease (see section 248B) was granted on or before 23 December 1996; and
(b) the grant was valid (including because of Division 2 or 2A); and
Note: As at the commencement of this section, grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.
(c) the future act takes place after 23 December 1996; and
(d) the future act permits or requires the carrying on of any of the following while the lease (including as renewed on one or more occasions) is in force:
(i) a primary production activity (see section 24GA) on the area covered by the lease; or
(ii) another activity, on the area covered by the lease, that is associated with or incidental to a primary production activity covered by subparagraph (i), provided that, when the other activity is being carried on, the majority of the area covered by the lease is used for primary production activities; and
(e) the future act could have been validly done or authorised at some time before 31 March 1998, if any native title in relation to the area covered by the lease had not then existed.
Note: For the renewal, re‑grant, re‑making or extension of certain acts covered by this section, see Subdivision I.
Farm tourism included
(2) This section applies to a future act that:
(a) takes place after 23 December 1996; and
(b) permits or requires a farm tourism activity in the area covered by a lease meeting the requirements of paragraphs (1)(a) and (b) while the lease is in force (including as renewed on one or more occasions).
Exception to subsection (2)
(3) However, this section does not apply to a future act permitting or requiring farm tourism if the act permits or requires tourism that involves observing activities or cultural works of Aboriginal peoples or Torres Strait Islanders.
Certain acts not covered
(4) This section does not apply to a future act if:
(a) where the lease covered by paragraph (1)(a) is a non‑exclusive pastoral lease covering an area greater than 5,000 hectares—the act has the effect that the majority of the area covered by the lease is required or permitted to be used for purposes other than pastoral purposes; or
(b) in any case—the act converts a lease covered by paragraph (1)(a) into a lease conferring a right of exclusive possession, or into a freehold estate, over any of the land or waters covered by the lease.
Note: If such an act is done in exercise of a legally conferred right, it could be covered by section 24ID. A lease conferring such rights or a freehold estate could be granted after a compulsory acquisition of native title under section 24MD or under certain indigenous land use agreements.
Validation of act
(5) If this section applies to a future act, the act is valid.
Non‑extinguishment principle
(6) The non‑extinguishment principle applies to the act.
Compensation
(7) The native title holders concerned are entitled to compensation for the act in accordance with Division 5.
Who pays compensation
(8) The compensation is payable by:
(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.
Notification
(9) If:
(a) the primary production activity mentioned in subparagraph (1)(d)(i) or (ii) is forest operations, a horticultural activity or an aquacultural activity; or
(b) the lease mentioned in paragraph (1)(a) is a non‑exclusive pastoral lease and the primary production activity mentioned in subparagraph (1)(d)(i) or (ii) is an agricultural activity;
before the future act is done, the person proposing to do the act must:
(c) notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the non‑exclusive agricultural lease or non‑exclusive pastoral lease that the act, or acts of that class, are to be done in relation to the particular land or waters; and
(d) give them an opportunity to comment on the act or class of acts.
24GC Primary production etc. activities on non‑exclusive agricultural or pastoral leases
(1) This section applies to an activity if:
(a) a non‑exclusive agricultural lease (see section 247B) or non‑exclusive pastoral lease (see section 248B) was granted on or before 23 December 1996; and
(b) the grant was valid (including because of Division 2 or 2A); and
Note: As at the commencement of this section, grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.
(c) the activity is the carrying on, after 23 December 1996 and while the lease (including as renewed on one or more occasions) is in force, of any of the following:
(i) a primary production activity on the area covered by the lease; or
(ii) another activity, on the area covered by the lease, that is associated with or incidental to a primary production activity covered by subparagraph (i), provided that, when the other activity is being carried on, the majority of the area covered by the lease is used for primary production activities; and
(d) at some time before 31 March 1998, the activity could have been done under any legislation then in force, or under any lease, licence, permit or authority that could have then been issued, in relation to the area covered by the lease, if any native title in relation to the area covered by the lease had not then existed.
Activities prevail over native title etc.
(2) To avoid doubt:
(a) the doing of any activity mentioned in paragraph (1)(c) prevails over any native title rights and interests and any exercise of those rights and interests, but does not extinguish them; and
(b) the existence and exercise of native title rights and interests do not prevent the carrying on of any such activity.
Note: This subsection is not intended to imply that the person carrying on the activity is not subject to the laws of a State or Territory.
Compensation
(3) Native title holders are not entitled to compensation under this Act for the carrying on of the activity.
Note: Any compensation to which the native title holders may be entitled under this Act for the grant of the lease, or other authority for the doing of the activity, may take into account the doing of the activity.
24GD Acts permitting off‑farm activities that are directly connected to primary production activities
(1) This section applies to a future act if:
(a) a freehold estate, an agricultural lease (see section 247) or a pastoral lease (see section 248) was granted on or before 23 December 1996; and
(b) the grant was valid (including because of Division 2 or 2A); and
Note: As at the commencement of this section, grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.
(c) the future act takes place after 23 December 1996; and
(d) the future act is not:
(i) the grant of a lease; or
(ii) any act that confers a right of exclusive possession over land; and
(e) the future act permits or requires the carrying on of grazing, or an activity consisting of or relating to gaining access to or taking water, that:
(i) takes place while the freehold estate exists or the agricultural lease or pastoral lease (including as renewed on one or more occasions) is in force; and
(ii) is directly connected to the carrying on of any primary production activity on the area covered by the freehold estate or the agricultural lease or pastoral lease; and
(iii) takes place in an area adjoining or near the area covered by the freehold estate or the agricultural lease or pastoral lease; and
(iv) does not prevent native title holders in relation to land or waters in the area in which the activity will be carried on from having reasonable access to the area; and
(f) if:
(i) before the future act is done, an approved determination of native title is made in relation to the land or waters on which any activity permitted or required by the future act takes place; and
(ii) the determination is that native title exists in relation to the land or waters and that the native title rights and interests confer exclusive possession of the land or waters on the native title holders;
the doing of the activity is not inconsistent with the exercise of the native title rights and interests.
Example 1: An example of an act covered by this section is the conferral of rights to graze cattle in an area adjoining that covered by an agricultural lease or pastoral lease, if the cattle are also grazed in the area covered by the lease.
Example 2: Another example is the conferral of rights to take water from an area near that covered by an agricultural lease or pastoral lease, if the water is for use in carrying on primary production activities in the area covered by the lease.
Note: For the renewal, re‑grant, re‑making or extension of certain acts covered by this section, see Subdivision I.
Validation of act
(2) If this section applies to a future act, the act is valid.
Non‑extinguishment principle
(3) The non‑extinguishment principle applies to the act.
Compensation
(4) The native title holders concerned are entitled to compensation for the act in accordance with Division 5.
Who pays compensation
(5) The compensation is payable by:
(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.
Notification
(6) Before the act is done, the person proposing to do the act must:
(a) notify, in the way determined, by legislative instrument, by the Commonwealth Minister, 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 that the act, or acts of that class, are to be done in relation to the land or waters concerned; and
(b) give them an opportunity to comment on the act or class of acts.
24GE Granting rights to third parties etc. on non‑exclusive agricultural or pastoral leases
(1) This section applies to a future act if:
(a) a non‑exclusive agricultural lease (see section 247B) or a non‑exclusive pastoral lease (see section 248B) was granted on or before 23 December 1996; and
(b) the grant was valid (including because of Division 2 or 2A); and
Note: As at the commencement of this section, grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.
(c) the future act takes place after 23 December 1996 and while the lease (including as renewed on one or more occasions) is in force; and
(d) the future act is not the grant of a lease; and
(e) the future act confers on any person (including the lessee) a right:
(i) to cut and remove timber; or
(ii) to extract, obtain or remove sand, gravel, rocks, soil or other resources (except so far as doing so constitutes mining);
from the area covered by the non‑exclusive agricultural lease or non‑exclusive pastoral lease; and
(f) before the future act is done, the person proposing to do the act:
(i) has notified, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the non‑exclusive agricultural lease or non‑exclusive pastoral lease that the act, or acts of that class, are to be done in relation to the particular land or waters; and
(ii) has given them an opportunity to comment on the act or class of acts.
Note: For the renewal, re‑grant, re‑making or extension of certain acts covered by this section, see Subdivision I.
Validation of act
(2) The future act is valid.
Non‑extinguishment principle
(3) The non‑extinguishment principle applies to the act.
Compensation
(4) The native title holders concerned are entitled to compensation for the act in accordance with Division 5.
Who pays compensation
(5) The compensation is payable by:
(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.
Subdivision H—Management of water and airspace
24HA Management or regulation of water and airspace
Legislative acts
(1) This section applies to a future act consisting of the making, amendment or repeal of legislation in relation to the management or regulation of:
(a) surface and subterranean water; or
(b) living aquatic resources; or
(c) airspace.
In this subsection, water means water in all its forms and management or regulation of water includes granting access to water, or taking water.
Leases, licences etc.
(2) This section also applies to a future act consisting of the grant of a lease, licence, permit or authority under legislation that:
(a) is valid (including because of this Act); and
(b) relates to the management or regulation of:
(i) surface and subterranean water; or
(ii) living aquatic resources; or
(iii) airspace.
In this paragraph, water means water in all its forms and management or regulation of water includes granting access to water, or taking water.
Validity of act
(3) The act is valid.
Non‑extinguishment principle
(4) The non‑extinguishment principle applies to the act.
Compensation
(5) The native title holders concerned are entitled to compensation for the act in accordance with Division 5.
Who pays compensation
(6) The compensation is payable by:
(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.
Notification
(7) Before an act covered by subsection (2) is done, the person proposing to do the act must:
(a) notify, in the way determined, by legislative instrument, by the Commonwealth Minister, 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, or acts of that class, that the act, or acts of that class, are to be done; and
(b) give them an opportunity to comment on the act or class of acts.
Subdivision I—Renewals and extensions etc.
24IA Future acts to which this section applies
This Subdivision applies to a future act if the act is:
(a) a pre‑existing right‑based act (see section 24IB); or
(b) a permissible lease etc. renewal (see section 24IC).
24IB Pre‑existing right‑based acts
A future act is a pre‑existing right‑based act if it takes place:
(a) in exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid (including because of Division 2 or 2A); or
(b) 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.
24IC Future acts that are permissible lease etc. renewals
(1) A future act is a permissible lease etc. renewal if:
(a) it is:
(i) the renewal; or
(ii) the re‑grant or re‑making; or
(iii) the extension of the term;
of a lease, licence, permit or authority (the original lease etc.) that is valid (including because of Division 2 or 2A); and
(b) any of the following subparagraphs applies:
(i) the original lease etc. was granted on or before 23 December 1996;
(ii) the grant of the original lease etc. was a permissible lease etc. renewal or a pre‑existing right‑based act;
(iii) the original lease etc. was created by an act covered by section 24GB, 24GD, 24GE or 24HA (which deal with certain acts in relation to primary production activities or involving management or regulation of water and airspace); and
(c) the future act does not:
(i) confer a right of exclusive possession over any of the land or waters covered by the original lease etc.; or
(ii) otherwise create a larger proprietary interest in the land or waters than was created by the original lease etc.; or
(iii) create a proprietary interest over any of the land or waters covered by the original lease etc., where the original lease etc. created only a non‑proprietary interest; or
(iv) if the original lease etc. was a non‑exclusive pastoral lease covering an area greater than 5,000 hectares and the majority of the area covered was not required or permitted to be used for purposes other than pastoral purposes—have the effect that the majority of the area covered by the renewed, re‑granted, re‑made or extended lease is required or permitted to be used for purposes other than pastoral purposes; and
(d) if the original lease etc. contains, or is subject to, a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders—the renewed, re‑granted, re‑made or extended lease, licence, permit or authority contains, or is subject to, the same reservation or condition; and
(e) if the original lease etc. did not permit mining—the renewed, re‑granted, re‑made or extended lease, licence, permit or authority does not permit mining.
Replacement by 2 or more leases etc.
(2) If 2 or more leases, licences, permits or authorities are granted in place of, respectively, a single lease, licence, permit or authority, then, for the purposes of subsection (1), each of the 2 or more grants is taken to be a renewal of the single lease, licence, permit or authority.
Replacing 2 or more leases etc. with a single lease etc.
(2A) If a single lease, licence, permit or authority is granted in place of, respectively, 2 or more leases, licences, permits or authorities (the original leases etc.), then:
(a) for the purpose of subsection (1), the single grant is taken to be a renewal of the original leases etc.; and
(b) paragraphs (1)(b) to (e) apply as if a reference in those paragraphs to the original lease etc. were a reference to the original leases etc.
Features that do not prevent a lease etc. from being a renewal
(3) The features listed in subsection (4) do not prevent:
(a) an act from being the renewal, re‑grant, re‑making, or extension of the term, of a lease, licence, permit or authority (the old authority) for the purposes of subsection (1) (the renewed, re‑granted, re‑made or extended lease, licence, permit or authority being the new authority); or
(b) 2 or more leases, licences, permits or authorities (each of which is a new authority) from being granted in place of a single lease, licence, permit or authority (the old authority) for the purposes of subsection (2).
Features
(4) The features are as follows:
(a) the new authority, or the new authorities together, cover a smaller area than the old authority;
(b) the term of the new authority, or of any of the new authorities, is longer than the term of the old authority;
(c) the new authority or any of the new authorities is a perpetual lease (other than a mining lease);
(d) if the new authority or any of the new authorities is a non‑exclusive agricultural lease or a non‑exclusive pastoral lease—the new authority permits or requires the carrying on of an activity that the old authority did not permit or require and that consists of:
(i) a primary production activity (see section 24GA); or
(ii) another activity, on the area covered by the new authority or of any of the new authorities, that is associated with or incidental to a primary production activity, provided that, when the other activity is being carried on, the use of the majority of the area covered by the new authority, or the new authorities together, will be for primary production activities.
24ID Effect of Subdivision applying to an act
(1) If this Subdivision applies to a future act:
(a) subject to Subdivision P (which deals with the right to negotiate), the act is valid; and
Note: Subdivision P applies only to certain renewals of mining leases etc.: see subsections 26(1A) and 26D(1).
(b) if the act consists of the grant of a freehold estate, or the conferral of a right of exclusive possession, over particular land or waters—the act extinguishes any native title in relation to the land or waters; and
Note: The only acts to which this paragraph applies are certain acts covered by section 24IB.
(c) in any other case—the non‑extinguishment principle applies to the act; and
(d) in any case—the native title holders are entitled to compensation for the act in accordance with Division 5.
Who pays compensation
(2) The compensation is payable by:
(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.
Notification
(3) If paragraph (1)(b) applied in relation to the future act, then, before the act is done, the person proposing to do the act must:
(a) notify, in the way determined, by legislative instrument, by the Commonwealth Minister, 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 that the act, or acts of that class, are to be done in relation to the land or waters concerned; and
(b) give them an opportunity to comment on the act or class of acts.
Other procedural rights
(4) If:
(a) the act is a permissible lease etc. renewal of a non‑exclusive agricultural lease (see section 247B) or a non‑exclusive pastoral lease (see section 248B); and
(b) the act is covered by paragraph 24IC(4)(b) or (c);
subsection 24MD(6B) applies to the act as if the act were a compulsory acquisition, of the kind mentioned in that subsection, of native title rights and interests in relation to the land or waters that will be affected by the act, done by:
(c) if the act is attributable to the Commonwealth—the Commonwealth; or
(d) if the act is attributable to a State or Territory—that State or Territory.
Subdivision JA—Public housing etc.
24JAA Public housing etc.
Coverage of Subdivision
(1) This Subdivision applies to a future act if:
(a) it relates, to any extent, to an onshore place; and
(b) it relates to:
(i) an area over which a freehold estate exists or a lease is in force, or that is vested in any person, where the grant of the freehold estate or lease or the vesting took place 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
(ii) an area that is held expressly for the benefit of, or held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and
(c) it either:
(i) permits or requires the construction, operation, use, maintenance or repair by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities (the action body), of any of the things listed in subsection (3); or
(ii) consists of the construction, operation, use, maintenance or repair by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities (the action body), of any of the things listed in subsection (3); and
(d) it is done or commenced as follows:
(i) if the act is covered by subparagraph (c)(i)—it is done within the period of 20 years beginning on the day on which the Native Title Amendment Act (No. 1) 2010 commences;
(ii) if the act is covered by subparagraph (c)(ii)—it is commenced within the period of 20 years beginning on the day on which the Native Title Amendment Act (No. 1) 2010 commences; and
(e) a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:
(i) in the area in which the act is done; and
(ii) of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.
Compulsory acquisitions not covered
(2) To avoid doubt, this Subdivision does not apply to a future act that is the compulsory acquisition of the whole or part of any native title rights and interests.
Public housing etc.
(3) For the purposes of paragraph (1)(c), the things are as follows:
(a) public housing provided for Aboriginal people or Torres Strait Islanders living in, or in the vicinity of, the area;
(b) any of the following that benefit those people:
(i) public education facilities;
(ii) public health facilities;
(iii) police facilities;
(iv) emergency facilities;
(c) staff housing provided in connection with housing or facilities covered by paragraph (a) or (b);
(d) any of the following provided in connection with housing or facilities covered by paragraph (a), (b) or (c):
(i) things listed in subsection 24KA(2);
(ii) sewerage treatment facilities;
(iii) things prescribed by the regulations.
Note: This subsection does not mean that facilities that benefit Aboriginal people or Torres Strait Islanders could not also benefit other people.
Validation of act
(4) If this Subdivision applies to a future act, then, subject to subsections (5) and (6), the act is valid.
(5) An act to which this Subdivision applies is invalid to the extent that it affects native title unless:
(a) if the act is covered by subparagraph (1)(c)(i)—before it is done; or
(b) if the act is covered by subparagraph (1)(c)(ii)—before it is commenced;
the action body:
(c) gives notice of, and an opportunity to comment on, the act in accordance with subsections (10) to (12); and
(d) provides a report to the Commonwealth Minister in accordance with subsection (16).
(6) An act to which this Subdivision applies is invalid to the extent that it affects native title if:
(a) if the act is covered by subparagraph (1)(c)(i)—it is done before; or
(b) if the act is covered by subparagraph (1)(c)(ii)—it is commenced before;
the end of the consultation period.
Non‑extinguishment principle
(7) The non‑extinguishment principle applies to the act.
Compensation
(8) If any 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 section, the native title holders are entitled to compensation for the act in accordance with Division 5.
Who pays compensation
(9) The native title holders may recover the compensation from:
(a) if the act is attributable to the Commonwealth:
(i) if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or
(ii) if not—the Crown in right of the Commonwealth; or
(b) if the act is attributable to a State or Territory:
(i) if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or
(ii) if not—the Crown in right of the State or Territory.
Notice
(10) The action body must:
(a) notify each of the following, in the way determined, by legislative instrument, by the Commonwealth Minister, that the act is to be done:
(i) any registered native title claimant in relation to land or waters in the area;
(ii) any registered native title body corporate in relation to land or waters in the area;
(iii) any representative Aboriginal/Torres Strait Islander body in relation to land or waters in the area; and
(b) give them an opportunity to comment on the act.
(11) The notice must:
(a) specify a day as the notification day for the act; and
(b) contain statements to the effect that:
(i) comments on the act; and
(ii) requests under subsection (13) to be consulted about the act;
must be made within the period of 2 months that begins on the notification day.
(12) The notification day must be a day by which, in the action body’s opinion, it is reasonable to assume that all notices under subsection (10) in relation to the act will have been received by, or will otherwise have come to the attention of, the persons who must be notified under that subsection.
Consultation
(13) Any registered native title claimant or registered native title body corporate may, in writing, request to be consulted about the doing of the act so far as it affects their registered native title rights and interests.
(14) If a request to be consulted is made within the time specified in paragraph (11)(b), the action body must consult with the claimant or body corporate about ways of minimising the act’s impact on registered native title rights and interests in relation to land or waters in the area, and, if relevant, any access to the land or waters or the way in which any thing authorised by the act might be done.
(15) In consulting with a claimant or body corporate, the action body must comply with any requirements determined, by legislative instrument, by the Commonwealth Minister.
Report
(16) The action body must provide the Commonwealth Minister with a report on the things done under subsections (10) to (12) and (14) and (15) in relation to the act. The report:
(a) must be provided:
(i) in writing in accordance with any requirements determined, by legislative instrument, by the Commonwealth Minister; and
(ii) whether or not there were comments on, or requests to be consulted about, the act; and
(b) may be published by the Commonwealth Minister.
Note: The Privacy Act 1988 contains provisions relevant to the use and disclosure of information.
Multiple action bodies
(17) If there are 2 or more action bodies for the act, it is sufficient if only one of those bodies meets the requirements of subsections (10) to (12) and (14) to (16) in relation to the act.
Multiple acts
(18) Notice of 2 or more acts to which this Subdivision applies may be given in the same notice under subsection (10).
Definitions
(19) In this section:
consultation period means the period that:
(a) begins on the notification day; and
(b) ends:
(i) if no claimant or body corporate requests under subsection (13) to be consulted about the act—2 months later; or
(ii) if one or more claimants or bodies corporate request to be consulted about the act—4 months later, or at such earlier time after the time specified in paragraph (i) as each claimant and body corporate that requested to be consulted has notified, in writing, that they have been consulted.
registered native title rights and interests means native title rights and interests described in an entry on:
(a) the Register of Native Title Claims; or
(b) the National Native Title Register.
Subdivision J—Reservations, leases etc.
24JA Acts covered by this Subdivision
Reservations etc.
(1) This Subdivision applies to a future act (the later act) if:
(a) an act (the earlier act) took place before the later act and on or before 23 December 1996; and
(b) the earlier act was valid (including because of Division 2 or 2A); and
(c) the earlier act:
(i) was done by the Crown in right of the Commonwealth, a State or Territory; or
(ii) consisted of the making, amendment or repeal of legislation by the Commonwealth, a State or Territory: and
(d) the earlier act contained, made or conferred a reservation, proclamation, dedication, condition, permission or authority (the reservation) under which the whole or part of any land or waters was to be used for a particular purpose; and
(e) the later act is done in good faith:
(i) under or in accordance with the reservation; or
(ii) in the area covered by the reservation, so long as the act’s impact on native title is no greater than the impact that any act that could have been done under or in accordance with the reservation would have had.
Example 1: A future act consisting of the creation of a national park management plan might be covered by subparagraph (e)(i), if the land concerned was reserved for the establishment of the national park before 23 December 1996.
Example 2: A future act consisting of the grant of a forestry licence might be covered by that subparagraph, if the grant is done under or in accordance with a dedication for forestry purposes made before 23 December 1996.
Example 3: Subparagraph (e)(ii) might apply if particular land was reserved as a hospital site before 23 December 1996, and instead a school is later built on the land.
Leases
(2) This Subdivision also applies to a future act (the later act) if:
(a) an act (the earlier act) took place before the later act and on or before 23 December 1996; and
(b) the earlier act was valid (including because of Division 2 or 2A); and
(c) the earlier act was done by the Crown in right of the Commonwealth, a State or a Territory; and
(d) the earlier act consisted of the grant of a lease to a statutory authority of the Commonwealth, the State or the Territory, where:
(i) under the lease, the whole or part of any land or waters covered by the lease was to be used for a particular purpose; or
(ii) there is written evidence, created at any time on or before 23 December 1996 by the Commonwealth, the State or the Territory, that the whole or part of any land or waters covered by the lease was to be used for a particular purpose; and
(e) the later act is done in good faith and consists of the use, by the statutory authority or any person, of the land or waters for the particular purpose.
24JB Treatment of acts covered by section 24JA
Validation of act
(1) If this Subdivision applies to a future act, the act is valid.
Extinguishment consequences—public works
(2) If the act consists of the construction or establishment of a public work:
(a) the act extinguishes any native title in relation to the land or waters on which the public work (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.
Extinguishment consequences—not public works
(3) If the act does not consist of the construction or establishment of a public work, the non‑extinguishment principle applies to the act.
Compensation
(4) The native title holders are entitled to compensation for the act in accordance with Division 5.
Who pays compensation
(5) The compensation is payable by:
(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.
Notification of public works
(6) If the act consists of the construction or establishment of a public work, then, before the act is done, the person proposing to do the act must:
(a) notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the reservation or lease that the act, or acts of that class, are to be done in relation to the land or waters; and
(b) give them an opportunity to comment on the act or class of acts.
Notification of national, State and Territory park management plans
(7) If the act consists of the creation of a plan for the management of a national, State or Territory park intended to preserve the natural environment of an area, then, before the act is done, the person proposing to do the act must:
(a) notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the plan that the act is to be done in relation to the land or waters; and
(b) give them an opportunity to comment on the act.
Subdivision K—Facilities for services to the public
24KA Facilities for services to the public
Coverage of Subdivision
(1) This Subdivision applies to a future act if:
(a) it relates, to any extent, to an onshore place; and
(b) it either:
(i) permits or requires the construction, operation, use, maintenance or repair, by or on behalf of any person, of any of the things listed in subsection (2) that is to be operated, or is operated, for the general public; or
(ii) consists of the construction, operation, use, maintenance or repair, by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities, of any of the things listed in subsection (2) that is to be operated, or is operated, for the general public; and
(c) it does not prevent native title holders in relation to land or waters on which the thing is located or to be located from having reasonable access to such land or waters in the vicinity of the thing, except:
(i) while the thing is being constructed; or
(ii) for reasons of health and safety; and
(d) a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:
(i) in the area in which the act is done; and
(ii) of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.
Compulsory acquisitions not covered
(1A) To avoid doubt, this Subdivision does not apply to a future act that is the compulsory acquisition of the whole or part of any native title rights and interests.
Facilities etc.
(2) For the purposes of paragraph (1)(b), the things are as follows:
(a) a road, railway, bridge or other transport facility (other than an airport or port);
(b) a jetty or wharf;
(c) a navigation marker or other navigational facility;
(d) an electricity transmission or distribution facility;
(e) lighting of streets or other public places;
(f) a gas transmission or distribution facility;
(g) a well, or a bore, for obtaining water;
(h) a pipeline or other water supply or reticulation facility;
(i) a drainage facility, or a levee or other device for management of water flows;
(j) an irrigation channel or other irrigation facility;
(k) a sewerage facility, other than a treatment facility;
(l) a cable, antenna, tower or other communication facility;
(la) an automatic weather station;
(m) any other thing that is similar to any one or more of the things mentioned in the paragraphs above.
Validation of act
(3) If this Subdivision applies to a future act, the act is valid.
Non‑extinguishment principle
(4) The non‑extinguishment principle applies to the act.
Compensation
(5) If any 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 section, the native title holders are entitled to compensation for the act in accordance with Division 5.
Who pays compensation
(6) The native title holders may recover the compensation from:
(a) if the act is attributable to the Commonwealth:
(i) if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or
(ii) if not—the Crown in right of the Commonwealth; or
(b) if the act is attributable to a State or Territory:
(i) if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or
(ii) if not—the Crown in right of the State or Territory.
Procedural rights
(7) The native title holders, and any registered native title claimants in relation to land or waters in the area concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held:
(a) to the extent (if any) that the land concerned is covered by a non‑exclusive agricultural lease (see section 247B) or a non‑exclusive pastoral lease (see section 248B)—a lease of that kind; or
(b) to the extent (if any) that paragraph (a) does not apply—ordinary title;
covering any land concerned or covering the land adjoining, or surrounding, any waters concerned.
Native title rights and interests to be considered
(7A) If, in the exercise of those procedural rights, the native title holders are entitled to have matters considered, those matters include their native title rights and interests.
Satisfying the right to be notified
(8) If:
(a) because of subsection (7) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and
(b) there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;
then one way in which the person may give the required notification is by notifying, in the way determined, by legislative instrument, by the Commonwealth Minister for the purposes of this subsection the following that the act is to take place:
(c) any representative Aboriginal/Torres Islander bodies for that part of the area concerned for which there is no registered native title body corporate;
(d) any registered native title claimants in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate.
Satisfying other procedural rights
(9) If:
(a) because of subsection (7) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and
(b) there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;
then one way in which the person may give effect to the requirement is:
(c) by doing the thing in relation to any registered native title claimant in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate; or
(d) if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate have an opportunity to comment on the doing of the act.
Subdivision L—Low impact future acts
24LA Low impact future acts
(1) This Subdivision applies to a future act in relation to particular land or waters if:
(a) the act takes place before, and does not continue after, an approved determination of native title is made in relation to the land or waters, if the determination is that native title exists; and
(b) the act does not consist of, authorise or otherwise involve:
(i) the grant of a freehold estate in any of the land or waters; or
(ii) the grant of a lease over any of the land or waters; or
(iii) the conferral of a right of exclusive possession over any of the land or waters; or
(iv) the excavation or clearing of any of the land or waters; or
(v) mining (other than fossicking by using hand‑held implements); or
(vi) the construction or placing on the land, or in the waters, of any building, structure, or other thing (other than fencing or a gate), that is a fixture; or
(vii) the disposal or storing, on the land or in the waters, of any garbage or any poisonous, toxic or hazardous substance.
Exclusion for public health or safety etc.
(2) Subparagraph (1)(b)(iv) does not apply to:
(a) excavation or clearing that is reasonably necessary for the protection of public health or public safety; or
(b) tree lopping, clearing of noxious or introduced animal or plant species, foreshore reclamation, regeneration or environmental assessment or protection activities.
Validation of act
(3) If this Subdivision applies to a future act, the act is valid.
Non‑extinguishment
(4) The non‑extinguishment principle applies to the act.
Subdivision M—Acts passing the freehold test
24MA Legislative acts
This Subdivision applies to a future act if it is the making, amendment or repeal of legislation and:
(a) the act applies in the same way to the native title holders concerned as it would if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters) affected; or
(b) the effect of the act on the native title in relation to the land or the waters is not such as to cause the native title holders to be in a more disadvantageous position at law than they would be if they instead held ordinary title to the land (or to the land adjoining, or surrounding, the waters).
Example 1: An example of a future act covered by paragraph (a) is the making of legislation that permits mining on land in respect of which there is either native title or ordinary title.
Example 2: An example of a future act covered by paragraph (b) is the amendment of legislation that permits mining on land that is subject to ordinary title so that it will also permit mining, on the same terms, on land in relation to which native title exists.
24MB Non‑legislative acts
Freehold test
(1) This Subdivision applies to a future act if:
(a) it is an act other than the making, amendment or repeal of legislation; and
(b) either:
(i) the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it; or
(ii) the act could be done in relation to the waters concerned if the native title holders concerned held ordinary title to the land adjoining, or surrounding, the waters; and
(c) a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:
(i) in the area to which the act relates; and
(ii) of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.
Example: An example of a future act covered by this subsection is the grant of a mining lease over land in relation to which there is native title when a mining lease would also be able to be granted over the land if the native title holders instead held ordinary title to it.
Opal or gem mining
(2) This Subdivision also applies to a future act if:
(a) it is an act other than the making, amendment or repeal of legislation; and
(b) it is not covered by subsection (1); and
(c) it consists of the creation or variation of a right to mine for opals or gems; and
(d) a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:
(i) in the area to which the act relates; and
(ii) of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.
24MC Only onshore places covered
However, this Subdivision only applies to a future act to the extent that it relates to an onshore place. A reference to an act to which this Subdivision applies is to be read as referring to the act to that extent only.
24MD Treatment of acts that pass the freehold test
Validation of act
(1) If this Subdivision applies to a future act, then, subject to Subdivision P (which deals with the right to negotiate), the act is valid.
Extinguishment of native title by compulsory acquisition
(2) If:
(a) the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both:
(i) the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and
(ii) the compulsory acquisition by the Commonwealth, the State or the Territory of non‑native title rights and interests in relation to land or waters; and
(b) the whole, or the equivalent part, of all non‑native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired (whether compulsorily or by surrender, cancellation or resumption or otherwise) in connection with the compulsory acquisition of the native title rights and interests; and
(ba) the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non‑native title rights and interests when their rights and interests are acquired;
then:
(c) the compulsory acquisition extinguishes the whole or the part of the native title rights and interests; and
(d) if compensation on just terms is provided under a law of the Commonwealth, a State or a Territory to the native title holders for the compulsory acquisition, and they request that the whole or part of any such compensation should be in a form other than money, the person providing the compensation must:
(i) consider the request; and
(ii) negotiate in good faith in relation to the request; and
(e) if compensation on just terms is not provided under a law of the Commonwealth, a State or Territory to the native title holders for the compulsory acquisition, they are entitled to compensation for the acquisition in accordance with Division 5.
Note 1: Subdivision P (which deals with the right to negotiate) applies to some acquisitions.
Note 2: This subsection only deals with the case where native title rights and interests are compulsorily acquired. It is also possible for native title rights and interests to be acquired voluntarily by means of an indigenous land use agreement or an agreement covered by subsection (2A). In such cases, non‑native title rights and interests could be acquired either compulsorily or by some other means (e.g. voluntarily).
Extinguishment of native title by surrender in course of right to negotiate process
(2A) If:
(a) notice of a proposed compulsory acquisition of native title rights and interests is given in accordance with section 29 or with an equivalent alternative provision applicable under section 43 or 43A; and
(b) an agreement arose out of negotiations in relation to the proposed compulsory acquisition of the native title rights and interests; and
(c) the agreement includes a statement to the effect that an act consisting of the surrender of the whole or part of the native title rights and interests is intended to extinguish the whole or the part of the native title rights and interests;
then:
(d) the surrender extinguishes the whole or the part of the native title rights and interests; and
(e) no native title holder who is entitled to any benefit provided under the agreement is entitled to any compensation for the act under this Act, other than compensation provided for in the agreement; and
(f) any other native title holder is entitled to compensation for the act in accordance with Division 5.
Non‑extinguishment and compensation
(3) In the case of any future act to which this Subdivision applies that is not covered by subsection (2) or (2A):
(a) the non‑extinguishment principle applies to the act; and
(b) if the following conditions are satisfied:
(i) the similar compensable interest test is satisfied in relation to the act; and
(ii) the law mentioned in section 240 (which defines similar compensable interest test) does not provide for compensation to the native title holders for the act;
the native title holders are entitled to compensation for the act in accordance with Division 5.
Who pays compensation
(4) The native title holders may recover the compensation from:
(a) if the act is attributable to the Commonwealth:
(i) if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or
(ii) if not—the Crown in right of the Commonwealth; or
(b) if the act is attributable to a State or Territory:
(i) if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or
(ii) if not—the Crown in right of the State or Territory.
Exception for certain lessees
(5) If:
(a) the act is the compulsory acquisition of the whole or part of any native title rights and interests; and
(b) the land or waters concerned are to any extent the subject of a non‑exclusive agricultural lease or a non‑exclusive pastoral lease;
then, despite subsection (4):
(c) the native title holders are not entitled to recover the compensation from the lessee; and
(d) if the act is attributable to the Commonwealth—the native title holders may recover the compensation from the Crown in right of the Commonwealth; and
(e) if the act is attributable to a State or Territory—the native title holders may recover the compensation from the Crown in right of the State or Territory.
Consequences of certain acts
(6) In the case of any future act to which this Subdivision applies, other than:
(a) an act to which Subdivision P (which deals with the right to negotiate) applies; or
(b) an act determined under section 26A to be an approved exploration etc. act; or
(c) an act determined under section 26B to be an approved gold or tin mining act; or
(d) an act covered by section 26C (which deals with opal or gem mining);
the consequences in subsections (6A) and (6B) apply.
Procedural rights
(6A) The native title holders, and any registered native title claimants in relation to the land or waters concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned.
Other consequences
(6B) If the act is:
(a) the compulsory acquisition of native title rights and interests for the purpose of conferring rights or interests in relation to the land or waters concerned on persons other than the Commonwealth, the State or the Territory to which the act is attributable; or
(b) the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility (see section 253) associated with mining;
the following consequences also apply:
(c) the Commonwealth, the State or the Territory to which the act is attributable must notify each of the following:
(i) any registered native title claimant (a claimant) in relation to the land or waters; and
(ii) any registered native title body corporate (a body corporate), in relation to the land or waters; and
(iii) any representative Aboriginal/Torres Strait Islander body in relation to the land or waters; and
(iv) the Registrar;
that the act is to be done; and
(d) any claimant or body corporate may object, within 2 months after the notification, to the doing of the act so far as it affects their registered native title rights and interests; and
(e) either:
(i) in a paragraph (a) case—the Commonwealth, the State or the Territory; or
(ii) in a paragraph (b) case—the person who requested or applied for the doing of the act;
must consult any claimants, and bodies corporate, who object, about ways of minimising the act’s impact on registered native title rights and interests in relation to the land or waters, and, if relevant, any access to the land or waters or the way in which any thing authorised by the act might be done; and
(f) if:
(i) a claimant or body corporate objects, as mentioned in paragraph (d), to the doing of the act; and
(ii) 8 months after the notification mentioned in paragraph (c), the objection has not been withdrawn;
the Commonwealth, the State or the Territory must ensure that the objection is heard by an independent person or body; and
(g) if the independent person or body hearing any objection as mentioned in paragraph (f) makes a determination upholding the objection, or that contains conditions about the doing of the act that relate to registered native title rights and interests, the determination must be complied with unless:
(i) the Minister of the Commonwealth, the State or the Territory responsible for indigenous affairs is consulted; and
(ii) the consultation is taken into account; and
(iii) it is in the interests of the Commonwealth, the State or the Territory not to comply with the determination.
Meaning of determination
(6C) In paragraph (6B)(g):
determination includes recommendation.
in the interests of the Commonwealth, the State or the Territory includes:
(a) for the social or economic benefit of the Commonwealth, the State or the Territory (including of Aboriginal peoples and Torres Strait Islanders); and
(b) in the interests of the relevant region or locality in the Commonwealth, the State or the Territory.
Satisfying the right to be notified
(7) If:
(a) because of subsection (6A) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and
(b) there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;
then one way in which the person may give the required notification is by notifying, in the way determined, by legislative instrument, by the Commonwealth Minister for the purposes of this subsection, the following that the act is to take place:
(c) any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate;
(d) any registered native title claimants in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate.
Satisfying other procedural rights
(8) If:
(a) because of subsection (6A) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and
(b) there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;
then one way in which the person may give effect to the requirement is:
(c) by doing the thing in relation to any registered native title claimant in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate; or
(d) if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate have an opportunity to comment on the doing of the act.
Subdivision N—Acts affecting offshore places
24NA Acts affecting offshore places
Coverage of Subdivision
(1) This Subdivision applies to a future act to the extent that it relates to an offshore place. A reference to a future act to which this Subdivision applies is to be read as referring to the act to that extent only.
Validation of act
(2) If this Subdivision applies to a future act, the act is valid.
Extinguishment of native title by compulsory acquisition
(3) If:
(a) the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both:
(i) the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and
(ii) the compulsory acquisition by the Commonwealth, the State or the Territory of non‑native title rights and interests in relation to land or waters; and
(b) the whole, or the equivalent part, of all non‑native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired (whether compulsorily or by surrender, cancellation or resumption or otherwise) in connection with the compulsory acquisition of the native title rights and interests; and
(c) the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non‑native title rights and interests when their rights and interests are acquired;
then the compulsory acquisition extinguishes the whole or the part of the native title rights and interests.
Non‑extinguishment principle
(4) In the case of any other future act to which this Subdivision applies, the non‑extinguishment principle applies to the act.
Compensation where compulsory acquisition
(5) If this Subdivision applies to a future act consisting of the compulsory acquisition of the whole or part of any native title rights and interests:
(a) if compensation on just terms is provided under a law of the Commonwealth, a State or a Territory to the native title holders for the acquisition, and they request that the whole or part of any such compensation should be in a form other than money, the person providing the compensation must:
(i) consider the request; and
(ii) negotiate in good faith in relation to the request; and
(b) if compensation on just terms is not provided under a law of the Commonwealth, a State or Territory to the native title holders for the acquisition, they are entitled to compensation for the acquisition in accordance with Division 5.
Compensation for other acts
(6) In the case of any other future act to which this Subdivision applies, the native title holders are entitled to compensation for the act in accordance with Division 5.
Who pays compensation
(7) The native title holders may recover the compensation from:
(a) if the act is attributable to the Commonwealth:
(i) if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or
(ii) if not—the Crown in right of the Commonwealth; or
(b) if the act is attributable to a State or Territory:
(i) if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or
(ii) if not—the Crown in right of the State or Territory.
Procedural rights
(8) In the case of any future act to which this Subdivision applies, the native title holders, and any registered native title claimants in relation to land or waters in the area concerned, have the same procedural rights as they would have in relation to the act on the assumption that they instead held any corresponding rights and interests in relation to the offshore place that are not native title rights and interests.
Satisfying the right to be notified
(9) If:
(a) because of subsection (8) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and
(b) there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;
then one way in which the person may give the required notification is by notifying, in the way determined, by legislative instrument, by the Commonwealth Minister for the purposes of this subsection, the following that the act is to take place:
(c) any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate;
(d) any registered native title claimants in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate.
Satisfying other procedural rights
(10) If:
(a) because of subsection (8) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and
(b) there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;
then one way in which the person may give effect to the requirement is:
(c) by doing the thing in relation to any registered native title claimant in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate; or
(d) if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate have an opportunity to comment on the doing of the act.
Subdivision O—Future acts invalid unless otherwise provided
24OA Future acts invalid unless otherwise provided
Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.
Subdivision P—Right to negotiate
25 Overview of Subdivision
(1) In summary, this Subdivision applies to certain future acts done by the Commonwealth, a State or a Territory that are of any of the following kinds:
(aa) certain acts covered by section 24IC (which deals with permissible lease etc. renewals);
(a) certain conferrals of mining rights;
(b) certain compulsory acquisitions of native title rights and interests;
(c) other acts approved by the Commonwealth Minister.
(2) Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act. However, in certain circumstances, the Commonwealth, State or Territory can limit its participation in negotiations if the other parties consent.
(3) If they do not reach agreement, an arbitral body, or a Minister, will make a determination about the act instead.
(4) If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title.
(5) States and Territories may make their own laws as alternatives to this Subdivision. The Commonwealth Minister must be satisfied as to certain matters before such laws can take effect.
Note: The fact that action is being taken to comply with this Subdivision does not imply that action under another law, such as processing requests or applications in respect of the act, cannot be taken at the same time.
26 When Subdivision applies
Subdivision applies to certain permissible lease etc. renewals
(1A) This Subdivision applies to a future act if:
(a) section 24IC (which deals with permissible lease etc. renewals) applies to the act; and
(b) the act is done by the Commonwealth, a State or a Territory (the Government party); and
(c) the renewal, re‑grant, re‑making or extension of the term of the lease, licence, permit or authority concerned creates a right to mine.
Subdivision also applies to certain future acts
(1) This Subdivision also applies to a future act if:
(a) Subdivision M (which deals with acts that pass the freehold test) applies to the act; and
Note: That Subdivision only applies to an act to the extent that the act relates to an onshore place: see section 24MC.
(b) the act is done by the Commonwealth, a State or a Territory (the Government party); and
(c) subject to this section, the act is:
(i) the creation of a right to mine, whether by the grant of a mining lease or otherwise, except one created for the sole purpose of the construction of an infrastructure facility (see section 253) associated with mining; or
Note: Rights to mine created for the sole purpose of the construction of an infrastructure facility associated with mining are dealt with in subsection 24MD(6B).
(ii) the variation of such a right, to extend the area to which it relates; or
(iii) the compulsory acquisition of native title rights and interests, unless:
(A) the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on the Government party and the Government party makes a statement in writing to that effect before the acquisition takes place; or
(B) the purpose of the acquisition is to provide an infrastructure facility; or
Note: Certain compulsory acquisitions covered by sub‑subparagraphs(iii)(A) and (B) are dealt with in subsection 24MD(6B).
(iv) any other act approved by the Commonwealth Minister, by legislative instrument, for the purposes of this paragraph, where, if the act is attributable to a State or Territory, the Commonwealth Minister consulted the State Minister or the Territory Minister about the approval before giving it.
Exclusions
(2) This Subdivision does not apply to the extent that the act is:
(a) an act covered by section 24EB (which deals with the effects of indigenous land use agreements) or by any of the sections listed in paragraphs 24AA(4)(a) to (i); or
(b) an act determined, by legislative instrument, by the Commonwealth Minister to be an approved exploration etc. act (see section 26A); or
(c) an act determined, by legislative instrument, by the Commonwealth Minister to be an approved gold or tin mining act (see section 26B); or
(d) an act excluded by section 26C (which deals with opal or gem mining) from the coverage of this Subdivision; or
(e) an act excluded by section 26D (which deals with renewals of valid mining leases etc.) from the coverage of this Subdivision; or
(f) an act that is the compulsory acquisition of native title rights and interests and that relates solely to land or waters wholly within a town or city (see section 251C).
Note: Under sections 43 and 43A, a State or Territory may, in certain circumstances, make alternative provisions to the regime provided for by this Subdivision.
Sea and intertidal zone excluded
(3) This Subdivision only applies to the act to the extent that the act relates to a place that is on the landward side of the mean high‑water mark of the sea. A reference to an act to which this Subdivision applies is to be read as referring to the act to that extent only.
26A Approved exploration etc. acts
(1) If the conditions in this section are satisfied, the Commonwealth Minister may, by legislative instrument, determine that an act, or that each act included in a class of acts, is an approved exploration etc. act.
First condition
(2) The first condition is that the act, or acts included in the class, consist of the creation or variation of a right to mine, where the right as so created or varied is a right to explore, a right to prospect or a right to fossick.
Second condition
(3) The second condition is that the Minister is satisfied that the act or acts are unlikely to have a significant impact on the particular land or waters concerned.
Drilling and second condition
(4) If the act or acts authorise drilling, this does not mean that the second condition cannot be satisfied.
Third condition
(5) The third condition is that the Minister has:
(a) notified any relevant representative Aboriginal/Torres Strait Islander bodies, and notified the public in the determined way, of the proposed determination; and
(b) invited submissions from them about the proposed determination; and
(c) considered any submissions made in response to the invitation.
Fourth condition
(6) The fourth condition is that the Minister is satisfied that, if the determination is made:
(a) all:
(i) registered native title bodies corporate; and
(ii) registered native title claimants; and
(iii) representative Aboriginal/Torres Strait Islander bodies;
in relation to any of the land or waters that will be affected by the act or acts will have a right to be notified that the act or each act included in the class is to be done; and
(b) any such persons or bodies will have a right to be heard by an independent person or body about:
(i) whether the act is to be done; and
(ii) any matter relating to the doing of the act;
unless no other person would have such a right, assuming the person had an interest of any kind in relation to the land or waters; and
(c) either:
(i) the person, or one of the persons, who will do any thing authorised by the act will have a legal obligation to consult appropriately any person or body covered by subparagraph (a)(i) or (ii), unless the person or body indicates that the person or body does not wish to be so consulted; or
(ii) procedures will be in place under which such consultation will be required;
for the purpose of minimising the impact of the act on the exercise of native title rights and interests in relation to land or waters that will be affected by the act, and in particular about the matters set out in subsection (7).
Matters relevant to fourth condition
(7) The matters are:
(a) the protection and avoidance of any area or site, on the land or waters to which the native title rights and interests relate, of particular significance to the persons holding the native title in accordance with their traditional laws and customs; and
(b) any access to the land or waters to which the native title rights and interests relate by:
(i) those persons; or
(ii) any person who will do any thing that is authorised because of, results from, or otherwise relates to, the doing of the act; and
(c) the way in which any other thing that:
(i) is authorised because of, results from, or otherwise relates to, the doing of the act; and
(ii) affects the native title rights and interests;
is to be done.
Revocation of determination
(8) If, at any time after making the determination, the Commonwealth Minister considers that circumstances have changed to the extent that the conditions in this section would not be satisfied if he or she were making the determination at that time, the Commonwealth Minister must:
(a) if the act or acts are done by a State or Territory:
(i) advise the State Minister or the Territory Minister concerned in writing of the fact; and
(ii) if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the conditions in this section would still not be satisfied—by legislative instrument, revoke the determination; or
(b) if the act or acts are done by the Commonwealth—by legislative instrument, revoke the determination.
26B Approved gold or tin mining acts
(1) If the conditions in this section are satisfied, the Commonwealth Minister may, by legislative instrument, determine that each act included in a class of acts done by a State or Territory is an approved gold or tin mining act.
First condition
(2) The first condition is that the relevant State Minister or Territory Minister has requested the Commonwealth Minister in writing to make such a determination in relation to acts in the class.
Second condition
(3) The second condition is that acts included in the class consist of the creation or variation of rights to mine, where the rights as so created or varied are rights to mine gold, or tin, in surface alluvium.
Third condition
(4) The third condition is that, by or under a law of the State or Territory, the only way in which the gold or tin may be recovered from the material that is mined is by a washing or an aeration process.
Fourth condition
(5) The fourth condition is that, by or under a law of the State or Territory, the persons given the rights to mine will be required to rehabilitate any area of land or waters, in which the mining takes place and in relation to which native title rights and interests may exist, for the purpose of minimising the impact of the mining on the land or waters.
Fifth condition
(6) The fifth condition is that the Commonwealth Minister has:
(a) notified any relevant representative Aboriginal/Torres Strait Islander bodies, and notified the public in the determined way, of the proposed determination; and
(b) invited submissions from them about the proposed determination; and
(c) considered any submissions made in response to the invitation.
Sixth condition
(7) The sixth condition is that the Commonwealth Minister is satisfied that, if the determination is made:
(a) all:
(i) registered native title bodies corporate; and
(ii) registered native title claimants; and
(iii) representative Aboriginal/Torres Strait Islander bodies;
in relation to any land or waters that will be affected by the acts will have a right to be notified that each act included in the class is to be done; and
(b) any such persons or bodies will have a right to be heard by an independent person or body about:
(i) whether the act is to be done; and
(ii) any matter relating to the doing of the act;
unless no other person would have such a right, assuming the person had an interest of any kind in relation to the land or waters; and
(c) either:
(i) the person, or one of the persons, who will do any thing authorised by the act will have a legal obligation to consult appropriately any person or body covered by subparagraph (a)(i) or (ii), unless the person or body indicates that the person or body does not wish to be so consulted; or
(ii) procedures will be in place under which such consultation will be required;
for the purpose of minimising the impact of the act on land or waters, in relation to which native title rights and interests may exist, that will be affected by the act, and in particular about the matters set out in subsection (8).
Matters relevant to sixth condition
(8) The matters are:
(a) the protection and avoidance of any area or site, on the land or waters to which the native title rights and interests relate, of particular significance to the persons holding the native title in accordance with their traditional laws and customs; and
(b) any access to the land or waters to which the native title rights and interests relate by:
(i) those persons; or
(ii) any person who will do any thing that is authorised because of, results from, or otherwise relates to, the doing of the act; and
(c) the way in which any rehabilitation or other thing that is authorised because of, results from, or otherwise relates to, the doing of the act is to be done.
Revocation of determination
(9) If, at any time after making the determination, the Commonwealth Minister considers that circumstances have changed to the extent that the conditions in this section would not be satisfied if he or she were making the determination at that time, the Commonwealth Minister must:
(a) advise the State Minister or the Territory Minister concerned in writing of the fact; and
(b) if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the conditions in this section would still not be satisfied—by legislative instrument, revoke the determination.
26C Excluded opal or gem mining
Mining other than exploring or prospecting
(1) This Subdivision does not apply to an act consisting of the creation or variation of a right to mine, if the right, as so created or varied:
(a) is not a right to explore or prospect; and
(b) relates solely to land or waters wholly within an approved opal or gem mining area (see subsection (2)); and
(c) allows:
(i) mining (other than puddling) only for opals or gems; or
(ii) mining consisting of puddling in respect of opals or gems; and
(d) allows that mining only in an area no larger than 5 hectares; and
(e) is conferred for a period of no more than 5 years; and
(f) if the right is able to be renewed one or more times—is able to be renewed for no more than 5 years each time.
Exploring or prospecting
(1A) This Subdivision also does not apply to an act consisting of the creation or variation of a right to mine that is a right to explore or prospect, if the right, as so created or varied:
(a) relates solely to land or waters wholly within an approved opal or gem mining area (see subsection (2)); and
(b) allows exploration or prospecting only for opals or gems; and
(c) allows that exploration or prospecting in an area no larger than 500 hectares; and
(d) is conferred for a period of no more than 5 years; and
(e) if the right is able to be renewed one or more times—is able to be renewed for no more than 5 years each time.
Approved opal or gem mining area
(2) If the conditions in subsections (3) to (5A) are satisfied, the Commonwealth Minister may, by legislative instrument, determine that a specified area of land or waters within a particular State or Territory is an approved opal or gem mining area for the purposes of this section.
First condition
(3) The first condition is that the relevant State Minister or Territory Minister has requested the Commonwealth Minister in writing to make such a determination in relation to the area.
Second condition
(4) The second condition is that the Commonwealth Minister is satisfied, having regard to:
(a) any mining rights conferred in the past in the area; and
(b) any other relevant matter;
that in the future at least some rights will be conferred to mine in the area that will:
(c) allow:
(i) mining for opals or gems (other than mining consisting of exploring, prospecting or puddling) only in an area no larger than 5 hectares; or
(ii) mining consisting of puddling in respect of opals or gems only in an area no larger than 5 hectares; or
(iii) mining consisting of exploration or prospecting for opals or gems in an area no larger than 500 hectares; and
(d) be conferred for a period of no more than 5 years; and
(e) if the rights are renewed one or more times—be renewed for a period of no more than 5 years each time.
Third condition
(5) The third condition is that, before making the request, the State Minister or Territory Minister:
(a) notified the public, and notified any registered native title bodies corporate, registered native title claimants and representative Aboriginal/Torres Strait Islander bodies in relation to any of the area, that he or she was intending to make the request in relation to the area; and
(b) invited submissions about the request, and in particular about the area covered by the request and about processes for the identification and protection of any area or site within that area of particular significance to native title holders in accordance with their traditional laws and customs; and
(c) considered any such submissions that were made.
Fourth condition
(5A) The fourth condition is that the Commonwealth Minister is satisfied, immediately before the determination is made, that mining for opals or gems is being carried on in the whole or a substantial part of:
(a) if paragraph (b) does not apply—the area; or
(b) if, immediately before the determination is made, any part of the area is an approved opal or gem mining area—so much of the area as is not already an approved opal or gem mining area.
Revocation of determination
(6) If, at any time after making the determination, the Commonwealth Minister considers that circumstances have changed to the extent that the conditions in subsections (3) to (5A) would not be satisfied if he or she were making the determination at that time, the Commonwealth Minister must:
(a) advise the State Minister or the Territory Minister concerned in writing of the fact; and
(b) if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the conditions in this section would still not be satisfied—by legislative instrument, revoke the determination.
26D Excluded mining acts: earlier valid acts
Renewal of valid mining lease etc.
(1) This Subdivision does not apply to an act consisting of the creation of a right to mine if:
(a) the creation of the right is done by:
(i) the renewal; or
(ii) the re‑grant or re‑making; or
(iii) the extension of the term;
of an earlier right to mine; and
(b) the earlier right:
(i) was created on or before 23 December 1996 by an act that is valid (including because of Division 2 or 2A); or
(ii) was created by an act to which this Subdivision applied that was not invalid to any extent under section 28; and
(c) the area to which the earlier right relates is not extended; and
(d) the term of the right is not longer than the term of the earlier right; and
(e) no rights are created in connection with the right that were not created in connection with the earlier right.
Act contemplated by exploration or prospecting agreement etc.
(2) This Subdivision does not apply to an act (the later act) consisting of the creation of a right to mine if:
(a) before the later act takes place, an act (the earlier act) consisting of the creation of a right to explore or prospect took place; and
(aa) the earlier act took place after the commencement of this section; and
(b) this Subdivision applied to the earlier act and, because:
(i) an agreement of the kind mentioned in paragraph 31(1)(b) was made in relation to the earlier act; or
(ii) a determination was made under section 38 that the earlier act might be done, or might be done subject to conditions being complied with;
the earlier act was not invalid to any extent under section 28; and
(c) the agreement or determination:
(i) included a statement to the effect that, if the later act were done, this Subdivision would not apply to the later act; and
(ii) provided that, if the later act were done, certain conditions would be complied with by parties other than native title parties (whether before or after the act was done); and
(d) any such conditions that were required to be complied with before the later act is done are complied with before the later act is done.
27 Arbitral body
Arbitral bodies: recognised State/Territory bodies
(1) If a law of a State or Territory for which there is a recognised State/Territory body so allows, the body is the arbitral body under this Subdivision in relation to acts of the State or Territory to which this Subdivision applies, other than acts in relation to:
(a) a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); or
(b) any place outside the jurisdictional limits of the State or Territory.
Arbitral bodies: NNTT
(2) If:
(a) a future act is done by the Commonwealth; or
(b) a future act is done by a State or Territory and there is no arbitral body under subsection (1) in respect of the act;
the National Native Title Tribunal is the arbitral body in respect of the act.
Arbitral body not to include holders of judicial offices
(3) If the arbitral body in respect of the act is the NNTT, for the purposes of performing the functions and exercising the powers of the arbitral body in respect of the act, the NNTT must not be constituted by:
(a) a member who is the holder of a judicial office; or
(b) members one or more of whom are the holders of judicial offices.
27A Relevant Minister
Commonwealth Minister
(1) If the arbitral body in respect of the act is the NNTT, for the purposes of this Subdivision the relevant Minister in respect of the act is the Commonwealth Minister.
State or Territory Minister
(2) If the arbitral body in respect of the act is a recognised State/Territory body, for the purposes of this Subdivision the relevant Minister in respect of the act is the State Minister or the Territory Minister, as the case requires.
27B Conditions under agreements or determinations etc.
Conditions of the kind mentioned in paragraph 31(1)(b), 36C(4)(c), 38(1)(c) or 42(3)(b) may provide for procedures to be followed by the negotiation parties (see section 30A) for dealing with issues that may arise as a result of, or otherwise in relation to, the doing of the act.
28 Act invalid if done before negotiation or objection/appeal etc.
(1) Subject to this Act, an act to which this Subdivision applies is invalid to the extent that it affects native title unless, before it is done, the requirements of one of the following paragraphs are satisfied:
(a) by the end of the period of 4 months after the notification day for the act (see subsection 29(4)), there is no native title party in relation to any of the land or waters that will be affected by the act;
(b) after the end of that period, but immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act;
(c) subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;
(d) a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;
(e) native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);
(f) an agreement of the kind mentioned in paragraph 31(1)(b) is made;
(g) a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with;
(h) a determination that the act must not be done is declared to be overruled in accordance with section 42.
Breach of undertaking to trustee
(2) Even if, before the act is done, the requirements of one of paragraphs (1)(c) to (h) are satisfied, the act is nevertheless invalid to the extent it affects native title if:
(a) in a case where an amount is to be secured by bank guarantee in favour of the Registrar in compliance with a condition of a determination made under section 36A or 38 or a declaration made under section 42:
(i) the Registrar is informed by the Government party as mentioned in item 2 of the table in subsection 52(2) that it no longer proposes to do the act; and
(ii) the Government party does the act without again complying with the requirements of this Subdivision; or
(b) in a case where a trustee is holding an amount in trust under this Subdivision in respect of the act until it is dealt with in accordance with section 52A:
(i) the trustee is informed by the Government party as mentioned in paragraph 52A(1)(b) that it no longer proposes to do the act; and
(ii) the Government party does the act without again complying with the requirements of this Subdivision.
29 Notification of parties affected
Notice in accordance with section
(1) Before the act is done, the Government party must give notice of the act in accordance with this section.
Persons to be given notice
(2) The Government party must give notice to:
(a) any registered native title body corporate (a native title party) in relation to any of the land or waters that will be affected by the act; and
(b) unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:
(i) any registered native title claimant (also a native title party); and
Note: A registered native title claimant is a person or group of persons whose name or names appear on the Register of Native Title Claims as the applicant in relation to a claim to hold native title: see the definition of registered native title claimant in section 253.
(ii) any representative Aboriginal/Torres Strait Islander body;
in relation to any land or waters that will be affected by the act; and
(c) if the doing of the act has been requested or applied for by a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied)—that person (a grantee party); and
(d) the registrar or other proper officer of the arbitral body in relation to the act.
Public notification
(3) Before the act is done, the Government party or the grantee party must also notify the public in the determined way (see section 252) of the act, unless there is a registered native title body corporate in relation to all of the land or waters that will be affected by the act.
Notice to specify day and include prescribed documents etc.
(4) The notice given under subsection (2) or (3) must:
(a) specify a day as the notification day for the act; and
(b) contain a statement to the effect that, under section 30, persons have until 3 months after the notification day to take certain steps to become native title parties in relation to the notice; and
(c) be accompanied by any prescribed documents and include any prescribed information.
Each notice to specify the same day
(5) Each such notice in relation to the act must specify the same day as the notification day.
Which days may be specified
(6) That day must be a day by which, in the Government party’s opinion, it is reasonable to assume that all notices under subsections (2) and (3) in relation to the act will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those subsections.
Acts attracting the expedited procedure
(7) The notices under this section may include a statement that the Government party considers the act is an act attracting the expedited procedure.
Multiple acts
(8) The Commonwealth Minister may, by legislative instrument, determine the circumstances and manner in which notice to a person under subsection (2) of 2 or more acts to which this Subdivision applies may be given in the same notice.
(8A) Notice to the public under subsection (3) of 2 or more acts to which this Subdivision applies may be given in the same notice.
Project acts
(9) If such a notice is given and:
(a) the notice identifies a project to be carried on in a specified area; and
(b) the 2 or more acts constitute or form part of the project (whether or not the notice separately specifies the area that each act will affect); and
(c) the arbitral body is the same for each of the acts; and
(d) the notice states that the acts are project acts for the purposes of this Subdivision;
the acts are project acts for the purposes of this Subdivision.
Note: Section 42A provides that this Subdivision applies to project acts in a modified way.
Project acts not to include statement about expedited procedure
(10) However, the notice must not include a statement that the Government party considers any of the project acts is an act attracting the expedited procedure.
30 Other native title parties etc.
(1) Each of the following is also a native title party:
(a) any applicant who, 4 months after the notification day (see subsection 29(4)), is a registered native title claimant in relation to any of the land or waters that will be affected by the act, so long as:
(i) the application containing the claim was filed in the Federal Court, or given to the recognised State/Territory body, before the end of 3 months after the notification day; and
(ii) the claim related to any of the land or waters that will be affected by the act;
Note: The note to subparagraph 29(2)(b)(i) explains who can be a registered native title claimant.
(b) any body corporate that, 3 months after the notification day, is a registered native title body corporate in relation to any of the land or waters that will be affected by the act;
(c) any body corporate that becomes a registered native title body corporate in relation to any of the land or waters that will be affected by the act:
(i) after the end of that period of 3 months; and
(ii) as a result of a claim whose details were entered on the Register of Native Title Claims before the end of that period of 3 months.
Ceasing to be a native title party
(2) A registered native title claimant ceases to be a native title party if the registered native title claimant ceases to be a registered native title claimant.
Note: If a native title claim is successful, the registered native title claimant will be succeeded as a native title party by the registered native title body corporate.
Registered native title rights and interests
(3) For the purposes of this Subdivision, the registered native title rights and interests of a native title party are:
(a) if the native title party is such because an entry has been made on the National Native Title Register—the native title rights and interests described in that entry; or
(b) if the native title party is such because an entry has been made on the Register of Native Title Claims—the native title rights and interests described in that entry.
Replacing a native title party
(4) If:
(a) an applicant (the old applicant) in relation to a claimant application is a native title party; and
(b) the old applicant is replaced as the applicant in relation to the claimant application by another applicant (the new applicant); and
(c) the new applicant becomes a registered native title claimant;
the new applicant also replaces the old applicant as the native title party.
30A Negotiation parties
Each of the following is a negotiation party:
(a) the Government party;
(b) any native title party;
(c) any grantee party.
31 Normal negotiation procedure
(1) Unless the notice includes a statement that the Government party considers the act attracts the expedited procedure:
(a) the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and
(b) the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:
(i) the doing of the act; or
(ii) the doing of the act subject to conditions to be complied with by any of the parties.
Note: The native title parties are set out in paragraphs 29(2)(a) and (b) and section 30. If they include a registered native title claimant, the agreement will bind all of the persons in the native title claim group concerned: see subsection 41(2).
Government party does not need to participate in negotiations
(1A) Despite paragraph (1)(b), the Government party does not need to negotiate about matters that the Government party determines do not affect the Government party if the other negotiation parties give written consent.
(1B) However, the Government party must be a party to the agreement.
Registered native title claimants
(1C) The requirement that a native title party that is a registered native title claimant be a party to the agreement is satisfied if:
(a) a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or
(b) if conditions under section 251BA on the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement.
(1D) The persons in the majority must notify the other persons who comprise the registered native title claimant within a reasonable period after becoming parties to the agreement as mentioned in paragraph (1C)(a). A failure to comply with this subsection does not invalidate the agreement.
Negotiation in good faith
(2) If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.
Arbitral body to assist in negotiations
(3) If any of the negotiation parties requests the arbitral body to do so, the arbitral body must mediate among the parties to assist in obtaining their agreement.
Information obtained in providing assistance not to be used or disclosed in other contexts
(4) If the NNTT is the arbitral body, it must not use or disclose information to which it has had access only because it provided assistance under subsection (3) for any purpose other than:
(a) providing that assistance; or
(b) establishing whether a negotiation party has negotiated in good faith as mentioned in paragraph (1)(b);
without the prior consent of the person who provided the NNTT with the information.
32 Expedited procedure
(1) This section applies if the notice given under section 29 includes a statement that the Government party considers the act is an act attracting the expedited procedure (see section 237).
Act may be done if no objection
(2) If the native title parties do not lodge an objection with the arbitral body in accordance with subsection (3), the Government party may do the act.
Kinds of objection
(3) A native title party may, within the period of 4 months after the notification day (see subsection 29(4)), lodge an objection with the arbitral body against the inclusion of the statement.
Objections against inclusion of statement
(4) If one or more native title parties object against the inclusion of the statement, the arbitral body must determine whether the act is an act attracting the expedited procedure. If the arbitral body determines that it is, the Government party may do the act.
Act not attracting expedited procedure
(5) If the arbitral body determines that the act is not an act attracting the expedited procedure, subsection 31(1) applies as if the notice did not include a statement that the Government party considers the act attracts the expedited procedure.
Withdrawal of objection
(6) At any time before the arbitral body makes a determination under subsection (4), a native title party may withdraw his or her objection. If all such objections are withdrawn, the Government party may do the act.
Withdrawal of statement about expedited procedure
(7) At any time before the arbitral body makes a determination under subsection (4), the Government party may, by giving written notice to the negotiation parties, withdraw its statement that it considers the act is an act attracting the expedited procedure. If it does so, subsection 31(1) applies as if the notice did not include such a statement.
33 Negotiations to include certain things
Profits, income etc.
(1) Without limiting the scope of any negotiations, they may, if relevant, include the possibility of including a condition that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a) the amount of profits made; or
(b) any income derived; or
(c) any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.
Existing rights, interests and use
(2) Without limiting the scope of any negotiations, the nature and extent of the following may be taken into account:
(a) existing non‑native title rights and interests in relation to the land or waters concerned;
(b) existing use of the land or waters concerned by persons other than native title parties;
(c) the practical effect of the exercise of those existing rights and interests, and that existing use, on the exercise of any native title rights and interests in relation to the land or waters concerned.
34 No agreement if determination
An agreement of the kind mentioned in paragraph 31(1)(b) has no effect in relation to the act for the purposes of this Subdivision if it is made after the making of a determination under section 36A or 38.
35 Application for arbitral body determination
(1) Any negotiation party may apply to the arbitral body for a determination under section 38 in relation to the act if:
(a) at least 6 months have passed since the notification day (see subsection 29(4)); and
(b) no agreement of the kind mentioned in paragraph 31(1)(b) has been made in relation to the act.
Withdrawal of application
(2) At any time before a determination in relation to the act is made under section 36A or 38, the negotiation party may withdraw the application by giving notice to the arbitral body.
Negotiations for an agreement
(3) Even though the application has been made, the negotiation parties may continue to negotiate with a view to obtaining an agreement of the kind mentioned in paragraph 31(1)(b) before a determination in relation to the act is made under section 36A or 38. If they make such an agreement before such a determination is made, the application is taken to have been withdrawn.
36 Arbitral body determination to be made as soon as practicable
(1) Subject to section 37, the arbitral body must take all reasonable steps to make a determination in relation to the act as soon as practicable.
Determination not to be made where failure to negotiate in good faith
(2) If any negotiation party satisfies the arbitral body that any other negotiation party (other than a native title party) did not negotiate in good faith as mentioned in paragraph 31(1)(b) (other than as provided by subsections 31(1A) and (2)), the arbitral body must not make the determination on the application.
Note: It would be possible for a further application to be made under section 35.
Report to Commonwealth Minister
(3) If the arbitral body is the NNTT and it does not make the determination within the period of 6 months starting when the application is made, it must, as soon as is reasonably practicable after the end of the period, advise the Commonwealth Minister in writing of the reason for it not doing so and include in that advice an estimate of when a determination is likely to be made.
Relevant Minister may give arbitral body notice as to urgency
(4) At any time later than 4 months after a negotiation party has made an application under section 35 that has not been withdrawn, and before either:
(a) the negotiation parties have made an agreement of the kind mentioned in paragraph 31(1)(b); or
(b) the arbitral body has made a determination under section 38;
the relevant Minister may give a written notice to the arbitral body requesting the arbitral body to make such a determination within the period specified in the notice. The period must end at a time later than 6 months after the application under section 35 was made.
36A Ministerial determination if arbitral body determination delayed
Relevant Minister may make determination
(1) If:
(a) the arbitral body has not made a determination in relation to the act within the period specified in a notice under subsection 36(4); and
(b) no agreement of the kind mentioned in paragraph 31(1)(b) has been made in relation to the act; and
(d) the requirements of section 36B are met;
the relevant Minister may, subject to this section, make a determination in relation to the act.
Requirement for State/Territory Minister to consult before making determination
(1A) If:
(a) the relevant Minister is a State Minister or a Territory Minister; and
(b) the determination is that the act may be done or may be done subject to conditions to be complied with by any of the parties;
the relevant Minister may only make the determination after he or she has consulted the Commonwealth Minister about the determination.
Criteria for making determination
(2) The relevant Minister may only make the determination if the relevant Minister considers that:
(a) a determination under section 38 is unlikely to be made within a period that is reasonable having regard to all the circumstances; and
(b) if the relevant Minister is a State Minister or a Territory Minister—it is in the interests of the State or Territory to make the determination at the time; and
(c) if the relevant Minister is the Commonwealth Minister—it is in:
(i) in any case—the national interest; and
(ii) if the act concerned is an act attributable to a State or Territory—the interests of the State or Territory;
to make the determination at the time.
Relevant Minister may consider other matters
(3) Subsection (2) does not prevent the relevant Minister from having regard to other matters in deciding whether to make a determination under this section.
36B Consultation prior to section 36A determination
(1) Before making a determination under section 36A, the relevant Minister must give notice in accordance with subsection (2), and with subsection (3), of this section.
Notice to arbitral body
(2) The relevant Minister must give written notice to the arbitral body requiring it, by the end of the day specified in the notice, to give the Minister and each negotiation party a summary of material that has been presented to the arbitral body in the course of the arbitral body considering whether to make a determination under section 38 in relation to the act.
Notice to negotiation parties
(3) The relevant Minister must give written notice to each negotiation party that the Minister is considering making the determination and that each negotiation party:
(a) may, by the end of the day specified in the notice, give the Minister any submission or other material that the negotiation party wants the Minister to take into account in deciding whether to make the determination and, if so, its terms; and
(b) if the negotiation party does so—must also give each of the other negotiation parties a copy of the submission or other material; and
(c) may, within 7 days after the specified day, in response to any submission or other material given by any other negotiation party or the arbitral body, give the Minister any further submission or other material that the negotiation party wants the Minister to take into account as mentioned in paragraph (a).
Specified day
(4) The day specified under subsection (2) or (3) must be the same in all of the notices given under the subsections. It must be a day by which, in the relevant Minister’s opinion, it is reasonable to assume that all of the notices so given will have been received by, or will otherwise have come to the attention of, the persons who must be so notified.
Natural justice
(5) If the relevant Minister complies with subsection (1), there is no requirement for any person to be given any further hearing before the relevant Minister makes the determination.
Material etc. taken into account
(6) In making the determination, the relevant Minister:
(a) must take into account:
(i) any submission or material provided by any of the negotiation parties in accordance with subsection (3), but only if the negotiation party has complied with the requirements of paragraph (3)(b); and
(ii) any report provided by the arbitral body; and
(iii) any consultations with the Commonwealth Minister as mentioned in subsection 36A(1A); and
(b) may, but need not, take into account any other matter or thing.
Minister’s power not limited
(7) The fact that no submission or other material of the kind mentioned in subsection (3) has been given to the Minister before the end of the day specified in the notice does not prevent the Minister from making the determination.
36C Section 36A determinations
Coverage of section
(1) This section:
(a) sets out the kind of determination that may be made under section 36A; and
(b) states the effect of such a determination; and
(c) contains other provisions relevant to such a determination.
Determination
(2) The relevant Minister does not have a duty to make a determination. This is so despite:
(a) the giving of any notice by the Minister; and
(b) the giving of any submission or other material to the Minister; and
(c) any request by a negotiation party for the Minister to make the determination; and
(d) any other circumstance.
Who makes determination
(3) A determination must be made by the relevant Minister personally.
Kinds of determination
(4) The relevant Minister may make any one of the following determinations:
(a) a determination that the act must not be done;
(b) a determination that the act may be done;
(c) a determination that the act may be done subject to conditions to be complied with by any of the negotiation parties.
Bank guarantee condition
(5) If a condition to be complied with is that an amount is to be secured by bank guarantee:
(a) the arbitral body must:
(i) determine the amount; and
(ii) specify the person who must secure the amount in that way; and
(b) the condition is not complied with unless:
(i) the guarantee is given by an authorised deposit‑taking institution within the meaning of the Banking Act 1959; and
(ii) the guarantee is secured in favour of the Registrar; and
(iii) regulations made under subsection (5A) are complied with.
(5A) The regulations may make provision in relation to the securing of an amount by bank guarantee in compliance with such a condition, and any other matter in relation to such a guarantee.
Trust condition
(5B) If a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52A:
(a) the arbitral body must determine the amount; and
(b) the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52A.
Note: The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.
Conditions to have contractual effect
(6) If the act is done, any conditions in a determination by the relevant Minister under this section have effect, in addition to any effect that they may have apart from this subsection, as if they were terms of a contract among the negotiation parties. If a native title party is a registered native title claimant, any other person included in the native title claim group (see section 253) concerned is a negotiation party for this purpose only.
Copy of determination to be tabled
(7) The relevant Minister must, as soon as practicable after making a determination, and in any case within 15 sitting days, cause a copy of the determination, together with reasons for the determination, to be laid:
(a) if the relevant Minister is the Commonwealth Minister—before each House of the Parliament; or
(b) if the relevant Minister is a State Minister—before the House, or both of the Houses, of Parliament of the State concerned; or
(c) if the relevant Minister is a Territory Minister—before the Legislative Assembly of the Territory concerned.
37 No arbitral body determination if agreement or Ministerial determination
The arbitral body must not make a determination if:
(a) an agreement of the kind mentioned in paragraph 31(1)(b) has been made; or
(b) a determination under section 36A has been made.
38 Kinds of arbitral body determinations
(1) Except where section 37 applies, the arbitral body must make one of the following determinations:
(a) a determination that the act must not be done;
(b) a determination that the act may be done;
(c) a determination that the act may be done subject to conditions to be complied with by any of the parties.
Determinations may cover other matters
(1A) A determination may, with the agreement of the negotiation parties, provide that a particular matter that:
(a) is not reasonably capable of being determined when the determination is made; and
(b) is not directly relevant to the doing of the act;
is to be the subject of further negotiations or to be determined in a specified manner.
Example: The arbitral body could determine that a mining lease may be granted subject to site clearance procedures to be determined by a third person.
Matters to be determined by arbitration
(1B) If:
(a) the manner specified is arbitration (other than by the arbitral body); and
(b) the negotiation parties do not agree about the manner in which the arbitration is to take place;
the arbitral body must determine the matter at an appropriate time.
Profit‑sharing conditions not to be determined
(2) The arbitral body must not determine a condition under paragraph (1)(c) that has the effect that native title parties are to be entitled to payments worked out by reference to:
(a) the amount of profits made; or
(b) any income derived; or
(c) any things produced;
by any grantee party as a result of doing anything in relation to the land or waters concerned after the act is done.
39 Criteria for making arbitral body determinations
(1) In making its determination, the arbitral body must take into account the following:
(a) the effect of the act on:
(i) the enjoyment by the native title parties of their registered native title rights and interests; and
(ii) the way of life, culture and traditions of any of those parties; and
(iii) the development of the social, cultural and economic structures of any of those parties; and
(iv) the freedom of access by any of those parties to the land or waters concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land or waters in accordance with their traditions; and
(v) any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions;
(b) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of land or waters in relation to which there are registered native title rights and interests, of the native title parties, that will be affected by the act;
(c) the economic or other significance of the act to Australia, the State or Territory concerned, the area in which the land or waters concerned are located and Aboriginal peoples and Torres Strait Islanders who live in that area;
(e) any public interest in the doing of the act;
(f) any other matter that the arbitral body considers relevant.
Existing non‑native title interests etc.
(2) In determining the effect of the act as mentioned in paragraph (1)(a), the arbitral body must take into account the nature and extent of:
(a) existing non‑native title rights and interests in relation to the land or waters concerned; and
(b) existing use of the land or waters concerned by persons other than the native title parties.
Laws protecting sites of significance etc. not affected
(3) Taking into account the effect of the act on areas or sites mentioned in subparagraph (1)(a)(v) does not affect the operation of any law of the Commonwealth, a State or Territory for the preservation or protection of those areas or sites.
Agreements to be given effect
(4) Before making its determination, the arbitral body must ascertain whether there are any issues relevant to its determination on which the negotiation parties agree. If there are, and all of the negotiation parties consent, then, in making its determination, the arbitral body:
(a) must take that agreement into account; and
(b) need not take into account the matters mentioned in subsection (1), to the extent that the matters relate to those issues.
40 No re‑opening of issues previously decided
If:
(a) the arbitral body is making a determination in relation to an act consisting of the creation of a right to mine in relation to an area; and
(b) an agreement, or a determination by an arbitral body, under this Subdivision involving the same negotiation parties was previously made in relation to a future act consisting of the creation of a right to mine in relation to the same area; and
(c) an issue was decided in the agreement or during the inquiry;
the negotiation parties must not, without leave of the arbitral body that is making the determination, seek to vary the decision on the issue.
41 Effect of determination or agreement
(1) Subject to this section:
(a) a determination by the arbitral body; or
(b) an agreement of the kind mentioned in paragraph 31(1)(b);
that the act may be done subject to conditions being complied with by the parties has effect, if the act is done, as if the conditions were terms of a contract among the negotiation parties. The effect is in addition to any other effect that the agreement or determination may have apart from this subsection.
Other negotiation parties
(2) If a native title party is a registered native title claimant, any other person included in the native title claim group concerned is taken to be a negotiation party for the purposes only of subsection (1).
Bank guarantee condition
(3) If, in the case of a determination by an arbitral body, a condition to be complied with is that an amount is to be secured by bank guarantee:
(a) the arbitral body must:
(i) determine the amount; and
(ii) specify the person who must secure the amount in that way; and
(b) the condition is not complied with unless:
(i) the guarantee is given by an authorised deposit‑taking institution within the meaning of the Banking Act 1959; and
(ii) the guarantee is secured in favour of the Registrar; and
(iii) regulations made under subsection (4) are complied with.
(4) The regulations may make provision in relation to the securing of an amount by bank guarantee in compliance with such a condition, and any other matter in relation to such a guarantee.
Trust condition
(5) If, in the case of a determination by the arbitral body, a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52A:
(a) the arbitral body must determine the amount; and
(b) the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52A.
Note: The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.
41A Copies of agreements and determinations
Negotiation parties
(1) The negotiation parties must:
(a) give a copy of any agreement mentioned in paragraph 31(1)(b) to the arbitral body; and
(b) advise the relevant Minister in writing of the making of any such agreement; and
(c) advise the arbitral body whether or not there is any other written agreement made between some or all of the negotiation parties in connection with the doing of the act.
Relevant Minister
(2) The relevant Minister must give a copy of any determination under section 36A to the negotiation parties and the arbitral body.
Arbitral body
(3) The arbitral body must give a copy of any determination under section 38 to the negotiation parties and the relevant Minister.
(4) The arbitral body must give a copy of any agreement or advice the arbitral body receives under subsection (1) of this section to the Registrar.
41B Access to information about agreements
Registrar must keep records
(1) The Registrar must keep a record in relation to each agreement of the kind mentioned in paragraph 31(1)(b) that the Registrar receives under subsection 41A(4).
(2) The record must include the following information in relation to the agreement (to the extent known to the Registrar):
(a) a description of the area of land or waters to which the agreement relates;
(b) the name of each party to the agreement and the address at which the party can be contacted;
(c) if the agreement specifies the period during which it will operate—that period;
(d) whether or not there is any other written agreement made between some or all of the parties to the agreement in connection with the doing of the act to which the agreement relates.
Parties must notify Registrar of changes
(3) A party to the agreement must notify the Registrar in writing of any change to the information mentioned in subsection (2).
(4) The Registrar must update the records to reflect any changes notified under subsection (3).
Information from records may be made available
(5) The Registrar must make the information mentioned in subsection (2) available to a person on request.
(6) However, if a party to the agreement notifies the Registrar in writing that the party does not wish some or all of the information to be made available under subsection (5), the Registrar must not make available the information concerned.
(7) If a party to the agreement notifies the Registrar in accordance with subsection (6), the party must notify each other party to the agreement.
Expired agreements
(8) The Registrar does not need to keep a record, or provide information, in relation to an agreement that has expired.
42 Overruling of determinations
(1) If a State Minister or a Territory Minister considers it to be in the interests of the State or Territory to overrule the determination of a recognised State/Territory body for the State or Territory, the State Minister or Territory Minister may, by writing given to the recognised State/Territory body, make a declaration in accordance with subsection (3).
Right of Commonwealth to overrule
(2) If the Commonwealth Minister considers it to be in:
(a) in any case—the national interest; or
(b) if the act concerned is an act attributable to a State or Territory—the interests of the State or Territory;
to overrule a determination of the NNTT (other than a determination under subsection 32(4), which deals with the expedited procedure), the Commonwealth Minister may, by writing given to the NNTT, make a declaration in accordance with subsection (3).
Kinds of declaration
(3) The Minister concerned may make either of the following declarations:
(a) a declaration that the determination is overruled;
(b) a declaration that the determination is overruled and that conditions set out in the declaration are to be complied with by any of the parties.
Time limit for making declaration
(4) Any declaration by the Minister concerned must be made within 2 months after the making of the determination.
Bank guarantee condition
(5) If a condition to be complied with is that an amount is to be secured by bank guarantee:
(a) the arbitral body must:
(i) determine the amount; and
(ii) specify the person who must secure the amount in that way; and
(b) the condition is not complied with unless:
(i) the guarantee is given by an authorised deposit‑taking institution within the meaning of the Banking Act 1959; and
(ii) the guarantee is secured in favour of the Registrar; and
(iii) regulations made under subsection (5A) are complied with.
(5A) The regulations may make provision in relation to the securing of an amount by bank guarantee in compliance with such a condition, and any other matter in relation to such a guarantee.
Trust condition
(5B) If a condition to be complied with is that an amount is to be paid and held in trust until it is dealt with in accordance with section 52A:
(a) the arbitral body concerned must determine the amount; and
(b) the amount, when paid, must be held in trust in accordance with the regulations until it is dealt with in accordance with section 52A.
Note: The NNTT cannot determine compensation (see Division 5 of this Part and Division 1 of Part 3). However, if the arbitral body is not the NNTT, it may be able to do so.
Conditions have contractual effect
(6) If the act is done, any conditions in a declaration by a Minister under this section have effect, in addition to any effect that they may have apart from this subsection, as if they were terms of a contract among the negotiation parties. If a native title party is a registered native title claimant, any other person included in the native title claim group concerned is a negotiation party for this purpose only.
Copy of declaration to be given to parties
(7) The arbitral body must give a copy of the declaration to the negotiation parties.
42A Project acts—modified application of Subdivision
(1) This section applies if 2 or more acts are, in accordance with subsection 29(9), project acts for the purposes of this Subdivision.
General rule—project acts treated as a single act
(2) This Subdivision applies to all of the project acts as if they were a single act.
Conditions
(3) However, this does not mean that conditions of the kind mentioned in paragraph 31(1)(b), 36C(4)(c), 38(1)(c) or 42(3)(b) must:
(a) apply to all of the project acts comprising the single act; or
(b) be the same for all of the project acts to which they apply.
43 Modification of Subdivision if satisfactory alternative State or Territory provisions
Determination about alternative provisions
(1) If:
(a) a law of a State or Territory provides for alternative provisions to those contained in this Subdivision in relation to some or all acts to which this Subdivision applies that are attributable to the State or Territory; and
(b) the Commonwealth Minister determines, by legislative instrument, that the alternative provisions comply with subsection (2);
then, while the determination is in force, the alternative provisions have effect instead of this Subdivision.
Requirement to be satisfied
(2) The alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, they:
(a) contain appropriate procedures for notifying registered native title bodies corporate, representative bodies, registered native title claimants and potential native title claimants of the act; and
(b) require negotiation in good faith among the persons concerned; and
(c) provide for mediation by a person or body to assist in settling any dispute among the persons concerned regarding the act; and
(d) give registered native title bodies corporate and registered native title claimants the right to object against the act; and
(e) make provision on similar terms to section 30 and contain time limits similar to those applicable under this Subdivision; and
(f) provide that the body determining the objection consists of, or includes, persons enrolled for at least 5 years as legal practitioners of:
(i) the High Court; or
(ii) another federal court; or
(iii) the Supreme Court of a State or Territory; and
(g) make provision to the same effect as section 39 in relation to matters that are required to be taken into account by the body determining the objection; and
(h) if the alternative provisions involve the hearing and determination of the objection by a person or body other than the NNTT or a recognised State/Territory body for the State or Territory—provide for a member of the recognised State/Territory body (if any) or of the NNTT to participate in the determination; and
(i) provide that any decision of the body determining the objection may only be overruled on grounds of State or Territory interest or of national interest; and
(j) make appropriate provision for compensation for the act, including provision for:
(i) bank guarantees on similar terms to those in subsections 36C(5), 41(3) and 42(5), and regulations made for the purposes of subsections 36C(5A), 41(4) and 42(5A); or
(ii) for trusts on similar terms to those in subsections 36C(5B), 41(5) and 42(5B); and
(k) if the alternative provisions allow a Minister to make a determination in relation to the act in circumstances other than those covered in paragraph (i)—provide for those circumstances to be similar to those set out in section 36A and for requirements similar to those in sections 36B and 36C to apply.
Effect of including conjunctive agreement/determination provisions and expedited procedure provisions
(2A) If the only reason for the Commonwealth Minister not being of the opinion that the alternative provisions comply with subsection (2) is that they include conjunctive agreement/determination provisions or expedited procedure provisions (see subsection (5)), the alternative provisions nevertheless comply with subsection (2).
Revocation of determination
(3) If at any time the alternative provisions are amended so that they no longer comply with subsection (2), the Commonwealth Minister must:
(a) advise the State Minister or the Territory Minister concerned in writing of the fact; and
(b) if, at the end of 180 days after doing so, the alternative provisions do not comply and subparagraphs (c)(i) and (ii) do not apply—by legislative instrument, revoke the determination made under paragraph (1)(b); and
(c) if:
(i) at the end of 180 days after advising the State Minister or Territory Minister, the alternative provisions do not comply and the Commonwealth Minister is satisfied that the State Minister or the Territory Minister is using his or her best endeavours to ensure that the alternative provisions will comply; and
(ii) before the end of the 180 days, the Commonwealth Minister determined, by legislative instrument, that a further period should apply for the purposes of this paragraph; and
(iii) at the end of the further period, the alternative provisions still do not comply;
by legislative instrument, revoke the determination made under paragraph (1)(b).
(3A) If, at any time, the alternative provisions cease to have ongoing effect, the Commonwealth Minister must, by legislative instrument, revoke the determination made under paragraph (1)(b).
Regulations to make transitional provisions
(4) The regulations may prescribe any modifications of this Act that are necessary to deal with transitional matters arising from the making, amendment or revocation of determinations under this section.
Meaning of certain expressions
(5) In this section:
conjunctive agreement/determination provisions means provisions that:
(a) are included in alternative provisions; and
(b) in the opinion of the Commonwealth Minister, have an effect, in combination with the other alternative provisions, that is similar to the effect that subsection 26D(2) of this Act has in combination with the other provisions of this Subdivision.
expedited procedure provisions means provisions that:
(a) are included in alternative provisions; and
(b) in the opinion of the Commonwealth Minister, have an effect, in combination with the other alternative provisions, that is similar to the effect that section 32 of this Act has in combination with the other provisions of this Subdivision.
43A Exception to right to negotiate: satisfactory State/Territory provisions
Determination about alternative provisions
(1) If:
(a) a law or laws of a State or Territory provide for alternative provisions to those contained in this Subdivision in relation to some or all acts to which this Subdivision applies that:
(i) are attributable to the State or Territory; and
(ii) relate, to any extent, to an area of land or waters that is an alternative provision area (see subsection (2)); and
(b) the Commonwealth Minister determines, by legislative instrument, that the provisions comply with subsections (4) and (6) and that the requirements of subsection (7) are complied with;
then, subject to subsection (10), while the determination is in force, the alternative provisions have effect instead of this Subdivision.
Meaning of alternative provision area
(2) An alternative provision area is:
(a) an area:
(i) that is, or was (whether before or after this Act commenced), covered by a freehold estate in fee simple or by a lease (other than a mining lease); and
(ii) over which all native title rights and interests have not been extinguished; or
Example 1: An example of such an area is an area covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease (including one subject to section 47).
Example 2: An example of a freehold estate in fee simple over which all native title rights and interests may not have been extinguished is one whose grant or vesting is covered by subsection 23B(9), (9A), (9B) or (9C).
(b) an area that is, or was (whether before or after this Act commenced):
(i) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in right of the State or Territory or by the making, amendment or repeal of legislation of the State or Territory, under which the whole or a part of the land or waters in the area was to be used for public purposes generally or for a particular purpose; and
(ii) in use for public purposes, for the particular purpose or for a similar purpose; or
Example: An example of an area covered by paragraph (b) is an area containing a national park.
(c) an area that, when the act is done, is wholly within a town or city (see section 251C).
Notification of proposed determination
(3) Before making the determination, the Commonwealth Minister must:
(a) notify all representative Aboriginal/Torres Strait Islander bodies for the land or waters concerned of the proposed determination; and
(b) invite submissions from them about the proposed determination; and
(c) consider any submissions made in response to the invitation.
Requirement to be satisfied: procedures etc.
(4) For the purposes of paragraph (1)(b), the alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, they:
(a) contain appropriate procedures for notifying each of the following that an act to which the provisions apply is to be done:
(i) any registered native title claimant (a claimant) in relation to any of the land or waters to which the act relates;
(ii) any registered native title body corporate (a body corporate) in relation to any of that land or waters;
(iii) any representative Aboriginal/Torres Strait Islander body in relation to any of that land or waters; and
(b) give any claimant or body corporate the right to object, within a specified period after the notification, to the doing of the act so far as it affects their registered native title rights and interests; and
(c) if the act is of the kind mentioned in subparagraph 26(1)(c)(iii) (which deals with certain compulsory acquisitions)—provide for consultation (including provide in relation to mediation) between:
(i) any claimants, and bodies corporate, who object; and
(ii) the State or Territory;
about ways of minimising the act’s impact on registered native title rights and interests in relation to the land or waters concerned; and
(d) in any other case—provide for consultation (including provide in relation to mediation) between:
(i) any claimants, and bodies corporate, who object; and
(ii) the person who requested or applied for the doing of the act;
about ways of minimising the act’s impact on registered native title rights and interests in relation to the land or waters concerned, including about any access to the land or waters or the way in which any thing authorised by the act might be done; and
(e) if any person objects as mentioned in paragraph (b), provide for the objection to be heard by an independent person or body; and
Example: The independent person or body could be a State or Territory tribunal which deals with acts of the kind concerned, for example, a mining warden where the act is the grant of a mining lease.
(f) provide for judicial review of the decision to do the act; and
Example: The judicial review could be by the Supreme Court of the State or Territory.
(g) provide that, if the independent person or body hearing any objection as mentioned in paragraph (e) makes a determination upholding the objection, or that contains conditions about the doing of the act that relate to registered native title rights and interests, the determination must be complied with unless:
(i) the Minister of the State or the Territory responsible for indigenous affairs is consulted; and
(ii) the consultation is taken into account; and
(iii) it is in the interests of the State or the Territory not to comply with the determination; and
(h) if the act is of the kind mentioned in subparagraph 26(1)(c)(iii) (which deals with certain compulsory acquisitions)—confer on each claimant and body corporate procedural rights that are not less favourable than those they would have on the assumption that they instead held ordinary title to any land concerned and to the land adjoining, or surrounding, any waters concerned.
Meaning of determination
(5) In paragraph (4)(g):
determination includes recommendation.
in the interests of the State or the Territory includes:
(a) for the social or economic benefit of the State or the Territory (including of Aboriginal peoples and Torres Strait Islanders); and
(b) in the interests of the relevant region or locality in the State or the Territory.
Requirement to be satisfied: compensation
(6) For the purposes of paragraph (1)(b), the alternative provisions comply with this subsection if, in the opinion of the Commonwealth Minister, they provide for compensation for the effect of the act on native title to be payable and for any dispute about the compensation to be determined by an independent person or body.
Requirement to be satisfied: preservation of areas of significance
(7) For the purposes of paragraph (1)(b), the requirements of this subsection are complied with if, in the opinion of the Commonwealth Minister, a law of the Commonwealth, the State or the Territory provides, for the whole of the land or waters to which the alternative provisions relate, in relation to the preservation or protection of areas, or sites, that may be of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.
Different provisions for different kinds of land or waters
(8) Laws of a State or Territory may make different provision under subsection (1) in relation to different kinds of land or waters.
Note: In such a case, the Commonwealth Minister would need to make separate determinations under that subsection.
Revocation of determination
(9) If at any time the alternative provisions are amended so that they no longer comply as mentioned in paragraph (1)(b), the Commonwealth Minister must:
(a) advise the State Minister or the Territory Minister concerned in writing of the fact; and
(b) if, at the end of 90 days after doing so, the alternative provisions do not comply and subparagraphs (c)(i) and (ii) do not apply—by legislative instrument, revoke the determination made under paragraph (1)(b); and
(c) if:
(i) at the end of 90 days after advising the State Minister or Territory Minister, the alternative provisions do not comply and the Commonwealth Minister is satisfied that the State Minister or the Territory Minister is using his or her best endeavours to ensure that the alternative provisions will comply; and
(ii) before the end of the 90 days, the Commonwealth Minister determined, by legislative instrument, that a further period should apply for the purposes of this paragraph; and
(iii) at the end of the further period, the alternative provisions still do not comply;
by legislative instrument, revoke the determination made under paragraph (1)(b).
(9A) If, at any time, the alternative provisions cease to have ongoing effect, the Commonwealth Minister must, by legislative instrument, revoke the determination made under paragraph (1)(b).
Exclusion of certain compulsory acquisitions
(10) The alternative provisions do not apply to an act of the kind mentioned in subparagraph 26(1)(c)(iii) (which deals with certain compulsory acquisitions) if the act involves the acquisition of native title rights and interests in relation to land or waters in both an alternative provision area and an area that is not an alternative provision area.
Regulations to make transitional provisions
(11) The regulations may prescribe any modifications of this Act that are necessary to deal with transitional matters arising from the making, amendment or revocation of determinations under this section.
43B Mining rights covering both alternative provision area and other area
If:
(a) a particular future act is the creation or variation of a right to mine in both an alternative provision area (as defined in subsection 43A(2)) and an area (the other area) that is not an alternative provision area; and
(b) because of section 43A, provisions of a State or Territory law would, apart from this section, have effect in relation to the act;
then, for the purposes of this Subdivision:
(c) the act is taken to consist of 2 separate acts, as follows:
(i) one act consisting of the creation or variation of that right to mine, but only in the alternative provision area; and
(ii) the other act consisting of the creation or variation of that right to mine, but only in the other area; and
(d) the act mentioned in subparagraph (c)(ii) is taken to be done only when the right concerned is first exercised in the other area.
Note: In effect, this section splits the act in 2 (for “right to negotiate” purposes only). Only the “act” mentioned in subparagraph (c)(i)—not the “act” mentioned in subparagraph (c)(ii)—attracts the alternative provisions under section 43A.
44 Additional operation of Subdivision
Without affecting its operation apart from this section, this Subdivision also has the effect that it would have if each reference to a grantee party were, by express provision, confined to a grantee party that is a foreign corporation, or a trading or financial corporation formed within the limits of the Commonwealth.
Subdivision Q—Conferral of access rights on native title claimants in respect of non‑exclusive agricultural and pastoral leases
44A Conditions for Subdivision to apply
(1) This Subdivision applies if the conditions in this section are met.
Person in claim group in respect of registered claim over non‑exclusive agricultural or pastoral lease
(2) A person must be included in the native title claim group (see section 253) in relation to a claim:
(a) for which there is an entry on the Register of Native Title Claims; and
Note: Under paragraph 190(4)(d), entries on the Register must be removed when the application in question is withdrawn, dismissed or otherwise finalised.
(b) that relates to any extent to an area that is covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease.
Access for traditional activities
(3) Either:
(a) as at the end of 23 December 1996, the person included in the native title claim group must have regularly had physical access to the whole or part (the traditional access area) of the area that is covered by both the claim and the lease for the purpose of carrying on one or more traditional activities (see subsection (4)) of the person; or
(b) the person included in the native title claim group must be a descendant of a person who, as at 23 December 1996, regularly had such physical access.
Traditional activity
(4) A traditional activity is an activity of any of the following kinds, but only if it is carried on for traditional purposes of Aboriginal people or Torres Strait Islanders:
(a) hunting, fishing, gathering or camping;
(b) performing rites or other ceremonies;
(c) visiting sites of significance.
44B Rights of access for traditional activities
Conferral of rights
(1) At all times while this Subdivision applies, the person included in the native title claim group has a right:
(a) to have access, in the same way and to the same extent as the access mentioned in subsection 44A(3), to the traditional access area for the purpose of carrying on the one or more traditional activities in that area in the same way and to the same extent as they were carried on pursuant to the access mentioned in that subsection; and
(b) to carry on those activities in that area in that way and to that extent.
Lessee etc. rights prevail
(2) The rights of:
(a) the lessee under the lease; or
(b) any person with non‑native title rights or interests in relation to the traditional access area;
prevail over the rights conferred by subsection (1). To avoid doubt, the existence and exercise of the rights conferred by subsection (1) do not prevent the doing of any thing in exercise of the rights of the lessee or person with the non‑native title rights or interests.
Agreements about rights
(3) The lessee or any person with non‑native title rights or interests in relation to the traditional access area may make an agreement with the person included in the native title claim group about:
(a) the manner of exercise of any of the rights conferred by subsection (1); or
(b) the variation of any of those rights.
Note: For example, an agreement might be made requiring notification of intended exercise of the rights.
Assistance in making agreements
(4) Any persons wishing to make such an agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement.
Information obtained in providing assistance not to be used or disclosed in other contexts
(4A) The NNTT must not use or disclose information to which it has had access only because it 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.
Statutory access rights do not amount to native title
(5) To avoid doubt, the fact that the person satisfies the conditions in section 44A does not mean that the person has native title rights and interests in relation to the traditional access area.
44C Suspension of native title rights
(1) For so long as the person included in the native title claim group has rights conferred by subsection 44B(1), no person can enforce any native title rights or interests in relation to the whole or part of the land or waters covered by the lease, except in proceedings before the Federal Court or a recognised State/Territory body that are related to the making of an approved determination of native title.
Other provisions not affected
(2) Subsection (1) does not affect the operation of any other provision of this Act.
Note: The “right to negotiate” provisions in Subdivision P are an example of provisions that are not intended to be affected.
44D Certain other laws not affected
Laws etc. of benefit to Aboriginal peoples or Torres Strait Islanders
(1) This Subdivision does not affect:
(a) any reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders contained:
(i) in any law of the Commonwealth, a State or a Territory; or
(ii) elsewhere; or
(b) the operation of any law of the Commonwealth, a State or a Territory that allows for the granting of access rights to Aboriginal peoples or Torres Strait Islanders; or
(c) the operation of any law of the Commonwealth, a State or Territory that relates to the preservation or protection of any area or site of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.
Laws of general application
(2) This Subdivision is not intended to imply that, in exercising rights conferred by subsection 44B(1), a person is not subject to laws of the Commonwealth, a State or a Territory that are of general application.
44E Federal Court jurisdiction
The Federal Court may, in its discretion, refuse to exercise the jurisdiction conferred on it under subsection 213(2) in relation to a matter involving a right conferred by subsection 44B(1) for the reason that an adequate alternative means of resolving the matter is available.
44F Request for mediation
(1) If all of the persons involved in any dispute about a right conferred by subsection 44B(1) agree, they may request the NNTT or a recognised State/Territory body to mediate in the dispute.
Note: Persons wishing to make an indigenous land use agreement about access in general may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement: see sections 24BF, 24CF and 24DG.
(2) The NNTT must not use or disclose information to which it has had access only because it mediated in the dispute for any purpose other than mediating the dispute without the prior consent of the person who provided the NNTT with the information.
44G Other mediation, arbitration and agreements not excluded by Subdivision
Nothing in this Subdivision prevents:
(a) mediation or arbitration by any person or body of any matter arising in relation to a right conferred by subsection 44B(1); or
(b) the making or enforcing of agreements about access to the area covered by the non‑exclusive agricultural lease or the non‑exclusive pastoral lease other than under rights conferred by subsection 44B(1).
Division 4—Other provisions relating to native title
44H Rights conferred by valid leases etc.
To avoid doubt, if:
(a) the grant, issue or creation of a lease, licence, permit or authority is valid (including because of any provision of this Act); and
(b) the lease, licence, permit or authority requires or permits the doing of any activity (whether or not subject to any conditions); and
(ba) an activity is done in accordance with the lease, licence, permit or authority and any such conditions;
then:
(c) the requirement or permission, and the doing of the activity, prevail over any native title rights and interests and any exercise of those rights and interests, but do not extinguish them; and
(d) the existence and exercise of the native title rights and interests do not prevent the doing of the activity; and
(e) native title holders are not entitled to compensation under this Act for the doing of the activity.
Note 1: Any compensation to which the native title holders may be entitled under this Act for the grant of the lease, licence, permit or authority may take into account the doing of the activity.
Note 2: This section is not intended to imply that the person carrying on the activity is not subject to the laws of a State or Territory.
45 RDA compensation to be determined under this Act
(1) If the Racial Discrimination Act 1975 has the effect that compensation is payable to native title holders in respect of an act that validly affects native title to any extent, the compensation, in so far as it relates to the effect on native title, is to be determined in accordance with section 50 as if the entitlement arose under this Act.
Recovery of compensation
(2) If the act took place before 1 January 1994 and is attributable to the Commonwealth, a State or a Territory, the native title holders may recover the compensation from the Commonwealth, the State or the Territory, as the case requires.
46 Effect of grant of leases and licences validated by McArthur River legislation
The non‑extinguishment principle applies to:
(a) the granting of the mineral leases and exploration licences validated by section 3 of the McArthur River Project Agreement Ratification Amendment Act 1993 of the Northern Territory; and
(b) the granting of the mineral lease and exploration licence by section 4A of the McArthur River Project Agreement Ratification Act 1992 of the Northern Territory.
47 Pastoral leases held by native title claimants
When section applies
(1) This section applies if:
(a) an application under section 61 is made in relation to an area; and
(b) when the application is made, a pastoral lease is held over the area by:
(i) any of the persons who made the application claiming to hold the native title or any other persons with whom they claimed to hold the title; or
(ii) a trustee, on trust for any of those persons; or
(iii) a company whose only shareholders or, in the case of a body corporate without shareholders, members are any of those persons.
Prior extinguishment to be disregarded
(2) For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests by any of the following acts must be disregarded:
(a) the grant of the lease itself;
(b) the creation of any other interest itself in relation to the area;
(c) the doing of any act under the lease or by virtue of holding the interest.
Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.
Effect of determination
(3) If the determination on the application is that the native title exists and is held by the persons mentioned in subparagraph (1)(b)(i), (ii) or (iii):
(a) the determination does not affect:
(i) the validity of the lease; or
(ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non‑extinguishment principle applies in relation to the grant of the lease and any other prior act affecting the native title; and
(c) any person, trustee or company holding the lease as mentioned in subparagraph (1)(b)(i), (ii) or (iii) has no procedural rights as holder of the lease in relation to any act, in relation to the land or waters, to which Subdivision P of Division 3 (which deals with the right to negotiate) applies.
47A Reserves etc. covered by claimant applications
When section applies
(1) This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made:
(i) a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place 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
(ii) the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and
(c) when the application is made, one or more members of the native title claim group occupy the area.
Prior extinguishment to be disregarded
(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded:
(a) the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii);
(b) the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services).
Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.
Effect of determination
(3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the grant or vesting or of the creation of the trust or reservation; or
(ii) the validity of the creation of any other prior interest in relation to the area; or
(iii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non‑extinguishment principle applies to the grant or vesting or the creation of the trust or reservation or any other prior interest.
Exclusion of Crown ownership of natural resources
(4) For the purposes of this section, a reference to the creation of an interest in relation to an area does not include a reference to the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity.
47B Vacant Crown land covered by claimant applications
When section applies
(1) This section applies if:
(a) a claimant application is made in relation to an area; and
(b) when the application is made, the area is not:
(i) covered by a freehold estate or a lease; or
(ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or
(iii) subject to a resumption process (see paragraph (5)(b)); and
(c) when the application is made, one or more members of the native title claim group occupy the area.
Prior extinguishment to be disregarded
(2) For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.
Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.
Effect of determination
(3) If the determination on the application is that the native title claim group hold the native title rights and interests claimed:
(a) the determination does not affect:
(i) the validity of the creation of any prior interest in relation to the area; or
(ii) any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and
(b) the non‑extinguishment principle applies to the creation of any prior interest in relation to the area.
Renewals and extensions of leases
(4) For the purposes of paragraph (1)(b), if, after a lease covering an area expires or is terminated, the lease is bona fide renewed, or its term is bona fide extended, the area is taken to be covered by the lease during the period between the expiry or termination and the renewal or extension.
Defined expressions
(5) For the purposes of this section:
(a) the creation of a prior interest in relation to an area does not include the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity; and
(b) an area is subject to a resumption process at a particular time (the test time) if:
(i) all interests last existing in relation to the area before the test time were acquired, resumed or revoked by, or surrendered to, the Crown in any capacity; and
(ii) when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose; and
(iii) the Crown still had a bona fide intention of that kind in relation to the area at the test time.
47C National parks etc. covered by native title applications
When section applies
(1) This section applies if:
(a) a claimant application or a revised native title determination application is made in relation to an area that is, or is part of, a park area (see subsection (3)); and
(b) the operation of this section in relation to an area (the agreement area) that is in an onshore place, and comprises the whole or a part of the park area, has been agreed to in writing by:
(i) any registered native title body corporate concerned or the applicant for any native title claim group concerned; and
(ii) whichever of the Commonwealth, the State or the Territory by or under whose law the park area was set aside, or the interest over the park area was granted or vested, as mentioned in subsection (3); and
(c) the agreement area is:
(i) Crown land; or
(ii) covered by a freehold estate held by the Crown, or a statutory authority of the Crown, in any of its capacities; and
(d) none of sections 47, 47A and 47B applies in relation to the agreement area.
(2) For the purposes of paragraph (1)(c), it is immaterial whether the land is:
(a) subject to a lease or licence; or
(b) covered by a dedication, reservation, proclamation, condition or declaration made or conferred by the Commonwealth, a State or a Territory; or
(c) covered by legislation of the Commonwealth, a State or a Territory under which the whole or a part of the land is to be used for a public purpose or public purposes; or
(d) held on trust for the benefit of another person; or
(e) subject to native title.
Meaning of park area
(3) A park area means an area (such as a national, State or Territory park):
(a) that is set aside; or
(b) over which an interest is granted or vested;
by or under a law of the Commonwealth, a State or a Territory for the purpose of, or purposes that include, preserving the natural environment of the area, whether that setting aside, granting or vesting resulted from a dedication, reservation, proclamation, condition, declaration, vesting in trustees or otherwise.
Public works
(4) An agreement referred to in paragraph (1)(b) may include a statement by the Commonwealth, or the State or Territory concerned, that it agrees that the extinguishing effect of any of its relevant public works (see subsection (11)) in the agreement area is to be disregarded.
(5) If the agreement area contains one or more relevant public works, the application mentioned in paragraph (1)(a) may also be the subject of an agreement in writing between:
(a) any registered native title body corporate concerned or the applicant for any native title claim group concerned; and
(b) the Commonwealth, the State or the Territory to which the relevant public work relates (see subsection (11));
that any extinguishment of native title by the construction or establishment of the relevant public work is to be disregarded.
Notice and time for comment
(6) Before making an agreement for the purposes of paragraph (1)(b) or subsection (5), the Commonwealth, or the State or Territory concerned, must:
(a) arrange for reasonable notification of the proposed agreement in the State or Territory in which the agreement area is located, whether on the internet, in a newspaper circulating generally in the State or Territory, on the radio or otherwise; and
(b) give interested persons an opportunity to comment on the proposed agreement.
The period for comment must be at least 3 months.
(7) The agreement must not be made before the end of the period for comment.
Prior extinguishment to be disregarded
(8) For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests in relation to the agreement area by any of the following acts must be disregarded:
(a) the setting aside, granting or vesting mentioned in subsection (3);
(b) the creation of any other prior interest in relation to the agreement area;
(c) if:
(i) the agreement under paragraph (1)(b) includes a statement of a kind mentioned in subsection (4); or
(ii) there is an agreement under subsection (5);
the construction or establishment of any relevant public works that are the subject of the agreement concerned.
Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.
Effect of determination
(9) If the determination on the application is that native title rights and interests exist in the agreement area:
(a) the determination does not affect:
(i) the validity of the setting aside, granting or vesting; or
(ii) the validity of the creation of any other prior interest in relation to the agreement area; or
(iii) any interest of the Crown in any capacity, or of any statutory authority, or of any other person, in any public works on the land or waters concerned (whether or not a relevant public work that is the subject of an agreement), or access to such public works; or
(iv) any existing public access to the agreement area; and
(b) the non‑extinguishment principle applies to the setting aside, granting or vesting or the creation of any other prior interest in relation to the agreement area.
Exclusion of Crown ownership of natural resources
(10) For the purposes of this section, a reference to the creation of an interest in relation to an area does not include a reference to the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity.
Definitions
(11) In this section:
Crown land means:
(a) land that has not been alienated from the Crown in right of the Commonwealth, a State or a Territory by a grant of an estate in fee simple; or
(b) land that has been so alienated, but has been resumed by, or has reverted to or been acquired by, the Crown.
relevant public work, in relation to the Commonwealth, a State or a Territory, means a public work:
(a) constructed or established directly by the Commonwealth, the State or the Territory; or
(b) constructed or established by another person on behalf of the Commonwealth, the State or the Territory.
Division 5—Determination of compensation for acts affecting native title etc.
48 Compensation payable in accordance with Division
Compensation payable under Division 2, 2A, 2B, 3 or 4 in relation to an act is only payable in accordance with this Division.
49 No multiple compensation for essentially same act
Despite anything in Division 2, 2A, 2B, 3 or 4:
(a) compensation is only payable under this Act once for acts that are essentially the same; and
(b) the court, person or body determining compensation in accordance with this Division must take into account any compensation awarded under a law of a State or Territory, or under another Commonwealth law, for essentially the same act.
50 Bodies that may determine compensation
Division exhaustive
(1) A determination of the compensation may only be made in accordance with this Division.
Note: Such compensation is generally for acts that are validated or valid. Native title holders would ordinarily be entitled to compensation or damages for invalid acts under the general law. The Federal Court may be able to award such compensation or damages in proceedings in relation to the invalidity of the act: see subsection 213(2).
Applications to Federal Court
(2) An application may be made to the Federal Court under Part 3 for a determination of the compensation.
Jurisdiction to hear appeals, to review etc. not affected
(3) Nothing in this Division affects:
(a) any jurisdiction of a court, person or body to hear appeals against, to review or otherwise to affect, a determination of compensation made in accordance with this Division; or
(b) the jurisdiction of the High Court.
51 Criteria for determining compensation
Just compensation
(1) Subject to subsection (3), the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.
Acquisition under compulsory acquisition law
(2) If the act is the compulsory acquisition of all or any of the native title rights and interests of the native title holders, the court, person or body making the determination of compensation on just terms may, subject to subsections (5) to (8), in doing so have regard to any principles or criteria for determining compensation set out in the law under which the compulsory acquisition takes place.
Compensation where similar compensable interest test satisfied
(3) If:
(a) the act is not the compulsory acquisition of all or any of the native title rights and interests; and
(b) the similar compensable interest test is satisfied in relation to the act;
the court, person or body making the determination of compensation must, subject to subsections (5) to (8), in doing so apply any principles or criteria for determining compensation (whether or not on just terms) set out in the law mentioned in section 240 (which defines similar compensable interest test).
Compensation not covered by subsection (2) or (3)
(4) If:
(a) neither subsection (2) nor (3) applies; and
(b) there is a compulsory acquisition law for the Commonwealth (if the act giving rise to the entitlement is attributable to the Commonwealth) or for the State or Territory to which the act is attributable;
the court, person or body making the determination of compensation on just terms may, subject to subsections (5) to (8), in doing so have regard to any principles or criteria set out in that law for determining compensation.
Monetary compensation
(5) Subject to subsection (6), the compensation may only consist of the payment of money.
Requests for non‑monetary compensation
(6) If the person claiming to be entitled to the compensation requests that the whole or part of the compensation should consist of the transfer of property or the provision of goods or services, the court, person or body:
(a) must consider the request; and
(b) may, instead of determining the whole or any part of the compensation, recommend that the person liable to give the compensation should, within a specified period, transfer property or provide goods or services in accordance with the recommendation.
Where recommendation not complied with
(7) If the person does not transfer the property or provide the goods or services in accordance with the recommendation, the person claiming to be entitled to the compensation may request the court, person or body to determine instead that the whole or the part of the compensation concerned is to consist of the payment of money.
Where recommendation complied with
(8) If the person does transfer the property or provide the goods or services in accordance with the recommendation, the transfer of the property or provision of the goods or services constitutes full compensation for the act, and the entitlement to it is taken to have been determined in accordance with this Division.
51A Limit on compensation
Compensation limited by reference to freehold estate
(1) The total compensation payable under this Division for an act that extinguishes all native title in relation to particular land or waters must not exceed the amount that would be payable if the act were instead a compulsory acquisition of a freehold estate in the land or waters.
This section is subject to section 53
(2) This section has effect subject to section 53 (which deals with the requirement to provide “just terms” compensation).
52 Bank guarantee required under right to negotiate procedures
(1) This section applies if a condition to be complied with under:
(a) a determination made under section 36A; or
(b) a determination made under section 38; or
(c) a declaration made under section 42;
in respect of an act is that an amount is to be secured by bank guarantee given by an authorised deposit‑taking institution within the meaning of the Banking Act 1959 (an ADI) in favour of the Registrar.
Directions to ADI and payments to ultimate beneficiaries
(2) The Registrar must take the action set out in column 3 of the following table in the circumstances set out in column 2 of the table:
Directions to ADI and payments to ultimate beneficiaries |
Item | If: | the Registrar must: |
1 | an approved determination of native title is made to the effect that there is no native title in relation to the area concerned immediately before the act takes place | direct the ADI to cancel the bank guarantee. |
2 | the Government party informs the Registrar in writing that it is not going to do the act | direct the ADI to cancel the bank guarantee. |
3 | (a) an approved determination of native title is made to the effect that the native title parties concerned are (disregarding any holding of the native title in trust under Division 6) the native title holders in relation to the area affected by the act; and (b) the registered native title body corporate advises the Registrar that it wishes to accept the amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act; and (c) the person who secured the amount by bank guarantee advises the Registrar that the person agrees to the registered native title body corporate accepting the amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act | (a) direct the ADI to pay the amount secured to the Registrar; and (b) pay that amount to the registered native title body corporate in relation to the area concerned. |
4 | (a) a determination is made, on a claim for compensation in respect of the act, that a person (the ultimate beneficiary) is entitled to compensation: (i) in accordance with this Division; or (ii) on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed; and (b) the amount secured is less than or equal to the amount determined | (a) direct the ADI to pay the amount secured to the Registrar; and (b) pay that amount to the ultimate beneficiary. |
5 | (a) a determination is made, on a claim for compensation in respect of the act, that a person (the ultimate beneficiary) is entitled to compensation: (i) in accordance with this Division; or (ii) on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed; and (b) the amount secured by bank guarantee is more than the amount determined | (a) direct the ADI to pay an amount equal to the amount determined to the Registrar; and (b) pay that amount to the ultimate beneficiary; and (c) direct the ADI to cancel the guarantee. |
6 | a determination is made, on a claim for compensation in respect of the act: (a) in accordance with this Division; or (b) on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed; that no person is entitled to compensation | direct the ADI to cancel the guarantee. |
7 | (a) the person who secured the amount by bank guarantee obtains an alternative bank guarantee from an ADI in favour of the Registrar; and (b) the alternative bank guarantee complies with regulations made for the purposes of subsection 36C(5A), 41(4) or 42(5A) (as the case requires) | direct the ADI to cancel the guarantee. |
8 | (a) the Registrar applies to the Federal Court in accordance with subsection (3) for an order in relation to the amount secured; and (b) the court orders that an amount be paid to a person (the ultimate beneficiary) | (a) direct the ADI to pay the secured amount (the original amount) to the Registrar; and (b) pay an amount to the ultimate beneficiary equal to the amount the court orders to be paid; and (c) if the amount to be paid to the ultimate beneficiary is less than the original amount—pay the remainder to the person who secured the original amount by bank guarantee or, if that person no longer exists, the person to whom the Federal Court orders it to be paid. |
9 | (a) none of the other items apply; and (b) the Federal Court decides, on application by any person, that it would be just and equitable in all the circumstances to pay the amount secured by bank guarantee to a person (the ultimate beneficiary) | (a) direct the ADI to pay the amount secured to the Registrar; and (b) pay that amount to the ultimate beneficiary. |
Application to the Federal Court where compensation includes transfer of property or provision of goods or services
(3) If:
(a) a determination is made, on a claim for compensation in respect of the act:
(i) in accordance with this Division; or
(ii) on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed;
that a person is entitled to compensation; and
(b) some or all of the compensation is constituted by the transfer of property or the provision of goods or services;
the Registrar must apply to the Federal Court for a direction as to the payment of the amount secured.
Federal Court jurisdiction
(4) The Federal Court has jurisdiction in relation to the matters mentioned in:
(a) items 5, 8 and 9 of the table in subsection (2); and
(b) subsection (3).
Compensation payable is greater amount than that secured
(5) If:
(a) a determination is made, on a claim for compensation in respect of the act:
(i) in accordance with this Division; or
(ii) on just terms under a law of the Commonwealth or of a State or Territory dealing with the compulsory acquisition of rights or interests in the land or waters in relation to which compensation is claimed;
that a person is entitled to compensation; and
(b) the amount secured by the bank guarantee is less than the amount determined;
the Government party must pay the shortfall to the person.
No compensation if already paid under bank guarantee
(6) Subject to section 53, if the Registrar pays an amount to a registered native title body corporate in accordance with item 3 of the table in subsection (2), there is no entitlement to compensation under Division 3 for the act.
52A Payment held in trust under right to negotiate procedures
When section applies
(1) This section applies if an amount (the trust amount) in respect of an act is being held in trust in accordance with paragraph 36C(5B)(b), subsection 41(5) or paragraph 42(5B)(b) and any of the following happens:
(a) an approved determination of native title is made to the effect that there is no native title in relation to the area concerned immediately before the act takes place;
(b) the Government party informs the trustee in writing that it is not going to do the act;
(c) the following requirements are satisfied:
(i) an approved determination of native title is made to the effect that the native title parties concerned are (disregarding any holding of the native title in trust under Division 6) the native title holders in relation to the area affected by the act;
(ii) the registered native title body corporate advises the trustee that it wishes to accept the trust amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act;
(iii) the person who paid the trust amount advises the trustee that the person agrees to the registered native title body corporate accepting the trust amount instead of any compensation to which the native title holders may be entitled under Division 3 for the act;
(d) a determination is made, on a claim for compensation in respect of the act:
(i) in accordance with this Division; or
(ii) on just terms under a compulsory acquisition law;
that a person is entitled to compensation, or that no compensation is payable to any person;
(e) none of paragraphs (a), (b), (c) and (d) applies and the Federal Court decides, on application by any person, that it would be just and equitable in all the circumstances to pay the trust amount to that person or another person.
Paragraph (1)(a) or (b) case
(2) In a paragraph (1)(a) or (b) case, the trustee must:
(a) repay the trust amount to the person who paid it to the trustee; or
(b) if that person no longer exists—apply to the Federal Court for a direction as to the payment of the trust amount.
Paragraph (1)(c) case
(3) In a paragraph (1)(c) case:
(a) the trustee must pay the trust amount to the body corporate; and
(b) subject to section 53, there is no entitlement to compensation under Division 3 for the act.
Paragraph (1)(d) case where monetary compensation
(4) In a paragraph (1)(d) case where the determination is that a person is entitled to an amount of monetary compensation:
(a) if the trust amount is the same as the amount determined—the trustee must pay the trust amount to the person; or
(b) if the trust amount is less than the amount determined—the trustee must pay the trust amount to the person and the Government party must pay the shortfall to the person; or
(c) if the trust amount is more than the amount determined—the trustee must:
(i) pay the person so much of the trust amount as equals the amount determined; and
(ii) refund the excess to the person who paid the trust amount to the trustee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment.
Paragraph (1)(d) case where non‑monetary compensation
(5) In a paragraph (1)(d) case where the transfer of property or the provision of goods or services constitutes some or all of the compensation, the trustee must apply to the Federal Court for a direction as to the payment of the trust amount.
Paragraph (1)(d) case where no compensation
(6) In a paragraph (1)(d) case where the determination is that no compensation is payable or to be given to any person, the trustee must repay the trust amount to the person who paid it to the trustee or, if that person no longer exists, apply to the Federal Court for a direction as to its payment.
Paragraph (1)(e) case
(7) In a paragraph (1)(e) case, the trustee must pay the trust amount in accordance with the decision of the Federal Court mentioned in that paragraph.
53 Just terms compensation
Entitlement to just terms compensation
(1) Where, apart from this section:
(a) the doing of any future act; or
(b) 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 this Act, from:
(c) if the compensation is in respect of a future act attributable to a State or a Territory—the State or Territory; or
(d) 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 subsection (1) and that jurisdiction is exclusive of the jurisdiction of all other courts except the High Court.
54 Commonwealth compensation payable from CRF
Amounts payable from CRF
(1) The following amounts are payable out of the Consolidated Revenue Fund:
(a) amounts of compensation payable by the Commonwealth in accordance with this Division;
(b) amounts to be spent by the Commonwealth in acquiring property or providing goods or services in order to comply with a recommendation under paragraph 51(6)(b) (which deals with requests for non‑monetary compensation).
Appropriation
(2) The Consolidated Revenue Fund is appropriated for the purposes of paying the amounts.
Division 6—Native title functions of prescribed bodies corporate and holding of native title in trust
55 Determinations by Federal Court
If:
(a) the Federal Court proposes to make an approved determination of native title; and
(b) the determination is that native title exists at the time of making the determination;
the Federal Court must, at the same time as, or as soon as practicable after, it makes the determination, make such determinations as are required by sections 56 (which deals with holding the native title on trust) and 57 (which deals with non‑trust functions of prescribed bodies corporate).
56 Determination whether native title to be held in trust
Trust determination
(1) One of the determinations that the Federal Court must make is whether the native title is to be held in trust, and, if so, by whom.
Steps in making determination
(2) The Federal Court is to take the following steps in making the determination:
(a) first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders) to indicate whether the common law holders intend to have the native title held in trust by:
(i) nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and
(ii) including with the nomination the written consent of the body corporate; and
(b) secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and
(c) thirdly, if the common law holders do not give the nomination within the period, the Federal Court must determine that the rights and interests are to be held by the common law holders.
Native title held in trust
(3) On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders.
Other matters relating to the trust to be dealt with by regulation
(4) The regulations may also make provision in respect of:
(a) the following matters relating to the holding in trust of the native title rights and interests:
(i) the functions to be performed by the body corporate;
(ii) the nature of any consultation with, or other role for, the common law holders;
(iii) the circumstances in which the rights and interests may be surrendered, transferred or otherwise dealt with;
(iv) the determination of any other matter by the Federal Court;
(v) any other matter; and
(b) the replacement of the trustee where the common law holders wish the trustee to be replaced; and
(c) the determination by the Federal Court of a prescribed body corporate to replace the trustee, and any other matter in relation to the replacement of the trustee; and
(d) the termination of the trust where:
(i) the common law holders wish the trust to be terminated; or
(ii) a liquidator is appointed for the body corporate; and
(e) the determination by the Federal Court of a prescribed body corporate to perform the functions mentioned in subsection 57(3) once the trust is terminated; and
(f) any matter in relation to the termination of the trust, the performance of those functions and the transition from the trust arrangement to the new arrangement, including the determination of those matters by the Federal Court.
Protection of native title from debt recovery processes etc.
(5) Subject to subsection (6), native title rights and interests held by the body corporate are not able to be:
(a) assigned, restrained, garnisheed, seized or sold; or
(b) made subject to any charge or interest; or
(c) otherwise affected;
as a result of:
(d) the incurring, creation or enforcement of any debt or other liability of the body corporate (including a debt or liability owed to the Crown in any capacity or to any statutory authority); or
(e) any act done by the body corporate.
Subsection (5) not applicable to dealings authorised by regulations
(6) Subsection (5) does not apply if the incurring of the debt, creation of the liability or doing of the act was in connection with a dealing with the native title rights and interests authorised by regulations for the purposes of paragraph (4)(c).
Where common law holders later wish a trust be determined
(7) The regulations may make provision in respect of:
(a) the determination by the Federal Court of a prescribed body corporate to hold the rights and interests from time to time comprising the native title in trust for the common law holders where:
(i) a determination is made, either under this section or under regulations made for the purposes of this section, that the rights and interests are to be held by the common law holders; and
(ii) the common law holders wish a prescribed body corporate to instead hold those rights and interests in trust; and
(b) the functions to be performed by the prescribed body corporate, once determined; and
(c) the nature of any consultation with, or other role for, the common law holders; and
(d) the circumstances in which the rights and interests may be surrendered, transferred or otherwise dealt with; and
(e) any other matter in relation to the holding in trust of the native title rights and interests, and the transition from the former to the new arrangement, including the determination of the matter by the Federal Court.
57 Determination of prescribed body corporate etc.
Where trustee
(1) If the determination under section 56 is that the native title rights and interests are to be held in trust by a prescribed body corporate, the prescribed body corporate, after becoming a registered native title body corporate (see the definition of that expression in section 253), must also perform:
(a) any other functions given to it as a registered native title body corporate under particular provisions of this Act; and
(b) any functions given to it as a registered native title body corporate under the regulations (see section 58).
Where not trustee
(2) If the determination under section 56 is not as mentioned in subsection (1) of this section, the Federal Court must take the following steps in determining which prescribed body corporate is, after becoming a registered native title body corporate, to perform the functions mentioned in subsection (3):
(a) first, it must request a representative of the common law holders to:
(i) nominate, in writing given to the Federal Court within a specified period, a prescribed body corporate for the purpose; and
(ii) include with the nomination the written consent of the body corporate;
(b) secondly, if a prescribed body corporate is nominated in accordance with the request, the Federal Court must determine that the body is to perform the functions;
(c) thirdly, if no prescribed body corporate is nominated in accordance with the request, the Federal Court must, in accordance with the regulations, determine which prescribed body corporate is to perform the functions.
Functions where not trustee
(3) After becoming a registered native title body corporate, the body must perform:
(a) any functions given to it as a registered native title body corporate under particular provisions of this Act; and
(b) any functions given to it under the regulations (see section 58).
58 Functions under regulations
The regulations may make provision for a registered native title body corporate to do all or any of the following:
(a) if it does not hold the native title on trust under section 56, or regulations made for the purposes of that section—to act as agent or representative of the common law holders in respect of matters relating to the native title;
(b) to perform in a specified way any functions in relation to the native title given to it under other provisions of this Act;
(ba) to perform in a specified way any functions, in relation to a compensation application, given to it under other provisions of this Act;
(c) to hold on trust, or perform functions in relation to, compensation under this Act;
(d) to consult with, and act in accordance with the directions of, the common law holders, or persons entitled to compensation under this Act, in performing any of its functions;
(e) if it does not hold the native title on trust—to enter into agreements in relation to the native title that are binding on the common law holders, provided the agreements have been made in accordance with processes set out in the regulations;
(f) to perform any other functions in relation to the native title, or compensation under this Act.
59 Kinds of prescribed bodies corporate may be determined
(1) The regulations may prescribe the kinds of body corporate that may be determined under paragraph 56(2)(b) or 57(2)(b).
(2) The regulations may prescribe the body corporate, or the kinds of body corporate, that may be determined under paragraph 57(2)(c).
(3) The regulations may prescribe the body corporate, or the kinds of body corporate, that may be determined under paragraph 56(4)(c) or (e), 56(7)(a) or 60(b).
59A Prescribed bodies corporate for subsequent determinations of native title
(1) If a prescribed body corporate holds native title rights and interests in trust for some common law holders, the Federal Court may determine under section 56 that the prescribed body corporate is to hold native title rights and interests in trust for other common law holders, so long as all of the common law holders mentioned consent to the determination.
(2) If a prescribed body corporate is an agent prescribed body corporate for some common law holders, the Federal Court may determine under paragraph 57(2)(b) that the prescribed body corporate is to be the agent prescribed body corporate for other common law holders, so long all of the common law holders mentioned consent to the determination.
(3) For the purposes of subsections (1) and (2), the regulations may prescribe the ways in which the consent of the common law holders may be obtained, and if the regulations do so, the common law holders must obtain the consent in that way.
60 Replacement of agent prescribed bodies corporate
The regulations may make provision for:
(a) the replacement of an agent prescribed body corporate (the original PBC) with another prescribed body corporate (the replacement PBC) to perform the functions mentioned in subsection 57(3) where:
(i) the common law holders wish the replacement to occur; or
(ii) a liquidator is appointed for the original PBC; and
(b) the determination by the Federal Court of the replacement PBC; and
(c) any matter in relation to the transition from the original PBC to the replacement PBC, including the determination of that matter by the Federal Court; and
(d) any other matters in relation to the replacement of the original PBC with the replacement PBC.
60AAA Assistance in relation to registered native title bodies corporate
(1) A registered native title body corporate may request the NNTT to provide assistance in promoting agreement about matters relating to native title or the operation of this Act between:
(a) the registered native title body corporate and another registered native title body corporate; or
(b) the registered native title body corporate and one or more common law holders; or
(c) common law holders.
(2) A common law holder may request the NNTT to provide assistance in promoting agreement about matters relating to native title or the operation of this Act between:
(a) the common law holder and the registered native title body corporate; or
(b) the common law holder, the registered native title body corporate and one or more other common law holders.
(3) The NNTT may enter into an agreement with a registered native title body corporate or common law holder or both under which either or both of them are liable to pay the Commonwealth for assistance under subsection (1) or (2).
(4) The NNTT must not use or disclose information to which it has had access only because it provided assistance under subsection (1) or (2) for any purpose other than providing that assistance without the prior consent of the person who provided the NNTT with the information.
60AA Body corporate for Meriam people
(1) If:
(a) a body corporate is or becomes registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; and
(b) all of the members of the body corporate are members of the Meriam people (see subsection (2)); and
(c) one of the objects of the body corporate is to become a registered native title body corporate in relation to native title held by the Meriam people; and
(d) a member of the Meriam people applies to the Federal Court for a determination under this section; and
(e) the Court is satisfied that the applicant represents the Meriam people;
then:
(f) this Act applies as if the body corporate were a prescribed body corporate nominated under subsection 56(2) or 57(2) in relation to those native title holders; and
(g) the Court may make a determination under section 56 or 57, in relation to that native title, as if the Court were doing so at the same time as making an approved determination of native title as mentioned in section 55; and
(h) if the Court makes such a determination under section 56 or 57—the Native Title Registrar must enter the name and address of the body corporate on the National Native Title Register; and
(i) while those details are on the Register, the body corporate is taken to be a registered native title body corporate for the purposes of this Act.
(2) In this section:
Meriam people means the people who were described by the High Court in its declaration in Mabo v Queensland [No. 2] (1992) 175 CLR 1 as the Meriam people.
Division 7—Financial matters
60AB Fees for services provided by registered native title bodies corporate in performing certain functions
(1) A registered native title body corporate may charge a person, other than a person mentioned in subsection (4), a fee for costs the registered native title body corporate incurs when performing one or more of the following functions:
(a) negotiating an agreement under paragraph 31(1)(b);
(b) negotiating an agreement under alternative provisions provided for by a law of a State or Territory in respect of which the Commonwealth Minister has made a determination under paragraph 43(1)(b);
(c) negotiating indigenous land use agreements under Subdivisions B, C and D of Division 3 of this Part.
(2) The regulations may provide for a registered native title body corporate to charge a person, other than a person mentioned in subsection (4), a fee for costs the registered native title body corporate incurs when performing other functions specified in the regulations.
(3) A fee imposed under subsection (1), or under regulations made for the purposes of subsection (2), must not be such as to amount to taxation.
(4) For the purposes of this section, a registered native title body corporate may not charge the following persons a fee:
(a) the common law holders for whom the registered native title body corporate holds native title rights and interests in trust;
(b) the common law holders for whom the registered native title body corporate is an agent prescribed body corporate;
(c) another registered native title body corporate;
(d) a representative body;
(e) a registered native title claimant or other person who claims to hold native title in relation to the land or waters in:
(i) an area affected by an act to which negotiations mentioned in subsection (1) relate; or
(ii) an area proposed to be covered by an indigenous land use agreement.
(5) A registered native title body corporate may not charge a person a fee for costs the registered native title body corporate incurs when performing functions:
(a) as a party to a proceeding or an inquiry in which:
(i) a determination that an act must not be done; or
(ii) a determination that an act may be done; or
(iii) a determination that an act may be done subject to conditions being complied with;
may be made in respect of an act to which negotiations mentioned in subsection (1) relate; and
(b) as a party to any court proceedings; and
(c) in any other circumstances prescribed by the regulations.
60AC Opinion of the Registrar of Aboriginal and Torres Strait Islander Corporations
(1) If a registered native title body corporate charges a person a fee in reliance on section 60AB, the person may, in writing, request the Registrar of Aboriginal and Torres Strait Islander Corporations (the Registrar) to give an opinion on whether the fee is one that the body corporate may charge under that section.
(2) The Registrar may give an opinion, in writing, on whether the fee is one that the registered native title body corporate may charge under that section.
(3) If the Registrar gives the opinion that the fee is not one that the registered native title body corporate may charge under that section, the body corporate must withdraw the charge.
(4) An opinion given by the Registrar under subsection (2) is not a legislative instrument.
(5) The regulations may make provisions dealing with:
(b) the process by which the request to the Registrar is made and considered; and
(c) the withholding of payment of the fee in relation to which a request is made; and
(d) any other matters in relation to the request, the consideration of the request, the giving of an opinion by the Registrar, and the consequences of the giving of that opinion.
Part 3—Applications
Division 1AA—Overview of Part
60A Overview of Part
(1) This Part has the rules for making:
(a) applications to the Federal Court for native title determinations, revised native title determinations and compensation: see Division 1; and
(b) various other applications to the Federal Court: see Division 1A; and
(c) applications to the National Native Title Tribunal under the “right to negotiate” provisions in Subdivision P of Division 3 of Part 2: see Division 2;
(d) applications to the Native Title Registrar objecting against registration of certain indigenous land use agreements: see Division 2A.
There are also some general rules that apply to the various kinds of application: see Division 3.
(2) Basically, the provisions set out who may make the different kinds of application, what they must contain and what is to be done when they are made.
Division 1—Applications to the Federal Court: native title and compensation
61 Native title and compensation applications
Applications that may be made
(1) The following table sets out applications that may be made under this Division to the Federal Court and the persons who may make each of those applications:
Applications |
Kind of application | Application | Persons who may make application |
Native title determination application | Application, as mentioned in subsection 13(1), for a determination of native title in relation to an area for which there is no approved determination of native title. | (1) A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group. (2) A person who holds a non‑native title interest in relation to the whole of the area in relation to which the determination is sought; or (3) The Commonwealth Minister; or (4) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned. |
Revised native title determination application | Application, as mentioned in subsection 13(1), for revocation or variation of an approved determination of native title, on the grounds set out in subsection 13(5). | (1) The registered native title body corporate; or (2) The Commonwealth Minister; or (3) The State Minister or the Territory Minister, if the determination is sought in relation to an area within the jurisdictional limits of the State or Territory concerned; or (4) The Native Title Registrar. |
Compensation application | Application under subsection 50(2) for a determination of compensation. | (1) A registered native title body corporate, if the determination is sought in relation to an area of land or waters in relation to which the registered native title body corporate holds, or is an agent prescribed body corporate in relation to, the native title rights and interests; or (1A) A registered native title body corporate, on behalf of all the persons who claim to be entitled to the compensation, if: (a) the determination is sought in relation to an area of land or waters (the extinguished area) that is within the external boundary of the area of land or waters covered by an approved determination of native title (the earlier determination) under which the registered native title body corporate holds, or is an agent prescribed body corporate in relation to, native title rights and interests; and (b) either: (i) the earlier determination is that native title does not exist in relation to the extinguished area; or (ii) the extinguished area was expressly excluded from the area covered by the earlier determination because of subsection 61A(2) (restrictions on making of certain applications); and (c) the persons who claim to be entitled to the compensation are the common law holders in relation to the earlier determination; or (2) A person or persons authorised by all the persons (the compensation claim group) who claim to be entitled to the compensation, provided the person or persons are also included in the compensation claim group. Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the compensation claim group. |
Applicant in case of applications authorised by claim groups
(2) In the case of:
(a) a native title determination application made by a person or persons authorised to make the application by a native title claim group; or
(b) a compensation application made by a person or persons authorised to make the application by a compensation claim group;
the following apply:
(c) the person is, or the persons are jointly, the applicant; and
(d) none of the other members of the native title claim group or compensation claim group is the applicant.
Applicant’s name and address
(3) An application must state the name and address for service of the person who is, or persons who are, the applicant.
Applications authorised by persons
(4) A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:
(a) name the persons; or
(b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.
Form etc.
(5) An application must:
(a) be in the prescribed form; and
(b) be filed in the Federal Court; and
(c) contain such information in relation to the matters sought to be determined as is prescribed; and
(d) be accompanied by any prescribed documents and any prescribed fee.
61A Restrictions on making of certain applications
No native title determination application if approved determination of native title
(1) A native title determination application must not be made in relation to an area for which there is an approved determination of native title.
Claimant applications not to be made covering previous exclusive possession act areas
(2) If:
(a) a previous exclusive possession act (see section 23B) was done in relation to an area; and
(b) either:
(i) the act was an act attributable to the Commonwealth; or
(ii) the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23E in relation to the act;
a claimant application must not be made that covers any of the area.
Claimant applications not to claim certain rights and interests in previous non‑exclusive possession act areas
(3) If:
(a) a previous non‑exclusive possession act (see section 23F) was done in relation to an area; and
(b) either:
(i) the act was an act attributable to the Commonwealth; or
(ii) the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23I in relation to the act;
a claimant application must not be made in which any of the native title rights and interests claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others.
Section not to apply in section 47, 47A, 47B or 47C cases
(4) However, subsection (2) or (3) does not apply to an application if:
(a) the only previous exclusive possession act or previous non‑exclusive possession act concerned was one whose extinguishment of native title rights and interests would be required by section 47, 47A, 47B or 47C to be disregarded were the application to be made; and
(b) the application states that section 47, 47A, 47B or 47C, as the case may be, applies to it.
62 Information etc. in relation to certain applications
Claimant applications
(1) A claimant application (see section 253):
(a) must be accompanied by an affidavit sworn by the applicant stating the matters mentioned in subsection (1A); and
(b) must contain the details specified in subsection (2); and
(c) may contain details of:
(i) if any member of the native title claim group currently has, or previously had, any traditional physical connection with any of the land or waters covered by the application—that traditional physical connection; or
(ii) if any member of the native title claim group has been prevented from gaining access to any of the land or waters covered by the application—the circumstances in which the access was prevented; and
(d) if the operation of section 47C (national parks etc. covered by native title applications) has been agreed to in writing in accordance with paragraph 47C(1)(b) in relation to the whole or any part of the area covered by the application—must be accompanied by a copy of the agreement, and if there is an agreement under subsection 47C(5), that agreement.
Note: The applicant will be the registered native title claimant in relation to the area claimed if and for so long as the claim is entered on the Register of Native Title Claims.
(1A) For the purposes of paragraph (1)(a), the matters are:
(a) that the applicant believes that the native title rights and interests claimed by the native title claim group have not been extinguished in relation to any part of the area covered by the application; and
(b) that the applicant believes that none of the area covered by the application is also covered by an approved determination of native title; and
(c) that the applicant believes that all of the statements made in the application are true; and
(d) that the applicant is authorised by all the persons in the native title claim group to make the application and to deal with matters arising in relation to it; and
(e) the details of the process of decision‑making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and
(f) if there are no conditions under section 251BA on the authority that relate to the making of the application—that there are no such conditions; and
(g) if there are any conditions under section 251BA on the authority that relate to the making of the application:
(i) that the conditions have been satisfied; and
(ii) how the conditions have been satisfied.
Note: Section 251B states what it means for the applicant to be authorised by all the persons in the native title claim group.
Details required by paragraph (1)(b)
(2) For the purposes of paragraph (1)(b), the details required are as follows:
(a) information, whether by physical description or otherwise, that enables the boundaries of:
(i) the area covered by the application; and
(ii) any areas within those boundaries that are not covered by the application;
to be identified;
(b) a map showing the boundaries of the area mentioned in subparagraph (a)(i);
(c) details and results of all searches carried out by or on behalf of the native title claim group to determine the existence of any non‑native title rights and interests in relation to the land or waters in the area covered by the application;
(d) a description of the native title rights and interests claimed in relation to particular land or waters (including any activities in exercise of those rights and interests), but not merely consisting of a statement to the effect that the native title rights and interests are all native title rights and interests that may exist, or that have not been extinguished, at law;
(e) a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:
(i) the native title claim group have, and the predecessors of those persons had, an association with the area; and
(ii) there exist traditional laws and customs that give rise to the claimed native title; and
(iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;
(f) if the native title claim group currently carry on any activities in relation to the land or waters—details of those activities;
(g) details of any other applications to the High Court, Federal Court or a recognised State/Territory body, of which the applicant is aware, that have been made in relation to the whole or a part of the area covered by the application and that seek a determination of native title or a determination of compensation in relation to native title;
(ga) details of any notifications under paragraph 24MD(6B)(c), of which the applicant is aware, that have been given and that relate to the whole or a part of the area;
(h) details of any notices under section 29 (or under a corresponding provision of a law of a State or Territory), of which the applicant is aware, that have been given and that relate to the whole or a part of the area;
(i) if there are any conditions under section 251BA on the authority of the applicant to make the application and to deal with matters arising in relation to it—details of the conditions.
Note: Notices under paragraph 24MD(6B)(c) and section 29 are relevant to subsection 190A(2).
Compensation applications—compensation claim group
(3) In the case of a compensation application whose making was authorised by a compensation claim group, the application:
(a) must be accompanied by an affidavit sworn by the applicant stating the matters mentioned in subsection (4); and
(b) must contain the details that would be required to be specified by paragraph (1)(b), and may contain the details that would be permitted under paragraph (1)(c), if the compensation application were instead a native title determination application in respect of the native title involved in the compensation application.
(4) For the purposes of paragraph (3)(a), the matters are:
(a) that the applicant believes that native title rights and interests exist or have existed in relation to the area; and
(b) that the applicant believes that all of the statements made in the application are true; and
(c) that the applicant is authorised by all the persons in the compensation claim group to make the application and to deal with matters arising in relation to it; and
(d) the details of the process of decision‑making complied with in authorising the applicant to make the application and to deal with matters arising in relation to it; and
(e) if there are no conditions under section 251BA on the authority that relate to the making of the application—that there are no such conditions; and
(f) if there are any conditions under section 251BA on the authority that relate to the making of the application:
(i) that the conditions have been satisfied; and
(ii) how the conditions have been satisfied.
Note: Section 251B states what it means for the applicant to be authorised by all the persons in the compensation claim group.
Compensation applications—registered native title body corporate
(5) In the case of a compensation application by a registered native title body corporate, the application:
(a) must be accompanied by an affidavit sworn by the applicant stating the matters mentioned in subsection (6); and
(b) must contain the details that would be required to be specified by paragraph (1)(b), and may contain the details that would be permitted under paragraph (1)(c), if the compensation application were instead a native title determination application in respect of the native title involved in the compensation application.
(6) For the purposes of paragraph (5)(a), the matters are:
(a) that the applicant believes that native title rights and interests exist or have existed in relation to the area; and
(b) that the applicant believes that all of the statements made in the application are true; and
(c) either:
(i) that the applicant holds, or is an agent prescribed body corporate in relation to, the native title rights and interests; or
(ii) that the area is within the external boundary of the area of land or waters covered by an approved determination of native title under which the registered native title body corporate holds, or is an agent prescribed body corporate in relation to, native title rights and interests.
Revised native title determination applications
(7) A revised native title determination application that covers an area in relation to which the operation of section 47C (national parks etc. covered by native title applications) has been agreed to in writing in accordance with paragraph 47C(1)(b) must be accompanied by a copy of the agreement and, if there is an agreement under subsection 47C(5), that agreement.
62A Power of applicants where application authorised by group
(1) In the case of:
(a) a claimant application; or
(b) a compensation application whose making was authorised by a compensation claim group;
the applicant may deal with all matters arising under this Act in relation to the application.
Note: This section deals only with claimant applications and compensation applications. For provisions dealing with indigenous land use agreements, see Subdivisions B to E of Division 3 of Part 2.
(2) Subsection (1) is subject to any conditions under section 251BA on the authority of the applicant.
62B General law duties
Any obligation of the applicant under this Act does not relieve the applicant, or detract, from any other duty of the applicant at common law or in equity to persons in the native title claim group or compensation claim group.
62C Acting where persons are jointly the applicant etc.
(1) This section applies if:
(a) an applicant makes a native title determination application or a compensation application; and
(b) 2 or more persons (the authorised persons) are jointly the applicant; and
(c) the applicant is required or permitted to do something under this Act, or for the purposes of this Act under another law of the Commonwealth; and
(d) apart from this section, for the applicant to do the thing, all of the authorised persons would need to do the thing.
Default rule—applicant may act by majority
(2) The requirement mentioned in paragraph (1)(d) is satisfied if the thing is done by a majority of the authorised persons unless subsection (4) applies.
(3) The authorised persons who do the thing must, within a reasonable period, notify the other authorised persons that the thing has been done. A failure to comply with this subsection does not invalidate the thing done.
Default rule may be displaced
(4) If conditions under section 251BA on the authority of the authorised persons provide for the applicant to do the thing in a particular way, the requirement mentioned in paragraph (1)(d) is satisfied if the thing is done in that way.
Example: A condition may provide that all the authorised persons need to do something required by a provision of this Act.
Rule covers applicant acting in any capacity
(5) This section applies whether the provision imposing the requirement or giving the permission refers to the applicant as an applicant, a registered native title claimant, a native title party, a negotiation party, a party or otherwise.
Deceased authorised persons
(6) For the purposes of this section, the authorised persons include any who have died. However, subsection (3) does not require notice to be given to a person who has died.
Note: The applicant may be replaced where an authorised person has died: see section 66B.
63 Reference of applications to Native Title Registrar
If an application under section 61 is filed in the Federal Court, the Federal Court Chief Executive Officer must, as soon as practicable, give the Native Title Registrar a copy of:
(a) the application; and
(b) any affidavit that accompanies the application under paragraph 62(1)(a), (3)(a) or (5)(a); and
(ba) any copy of an agreement that accompanies the application under paragraph 62(1)(d) or subsection 62(7); and
(c) any prescribed documents that accompany the application under paragraph 61(5)(d).
64 Amendment of applications
Application may be amended to reduce land or waters covered
(1A) An application may at any time be amended to reduce the area of land or waters covered by the application. (This subsection does not, by implication, limit the amendment of applications in any other way.)
Note: If such an amendment is made, the Court may make an appropriate costs order under section 85A.
Amendments taken to have been made in certain cases
(1B) An application is taken to have been amended to reduce the area of land or waters covered by the application if an order is made under section 87A by the Federal Court. The area of land or waters is reduced by the area in relation to which the order is made.
(1C) Subsection (1B) does not, by implication, limit the amendment of applications in any other way.
Amendment not to result in inclusion of additional areas
(1) An amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application.
Note: The Federal Court Rules provide for the amendment of applications.
Exceptions to subsection (1)
(2) However, if:
(a) the application is a claimant application (see section 253); and
(b) the amendment combines the application with another claimant application or claimant applications;
subsection (1) does not prevent the inclusion of any area of land or waters covered by the other application or applications.
(2A) In addition, subsection (1) does not prevent an amendment that results in the inclusion of any area of land or waters that was not covered by the original application, if the operation of section 47C has been agreed to in writing in accordance with paragraph 47C(1)(b) in relation to the area after the making of the original application.
Application may be amended despite current action by Registrar or Federal Court
(3) In the case of a claimant application, the fact that:
(a) the Registrar is, under section 190A, considering the claim made in the application; or
(b) the NNTT is, under section 190E, reconsidering the claim made in the application; or
(c) the Federal Court is, on the application of the applicant under subsection 190F(1), reviewing the decision of the Registrar in relation to the claim;
does not prevent amendment of the application.
Federal Court Chief Executive Officer to give copy of amended application to Native Title Registrar
(4) If an application is amended, the Federal Court Chief Executive Officer must, as soon as practicable, give a copy of the amended application to the Native Title Registrar.
66 Notice of application
Registrar to comply with section
(1) If the Native Title Registrar is given a copy of an application under section 63, the Registrar must comply with the requirements of this section.
Copies to State/Territory Minister
(2) If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the Registrar must, as soon as is reasonably practicable, give the State Minister or Territory Minister for the State or Territory a copy of:
(a) the application; and
(b) any other documents that the Federal Court Chief Executive Officer gives the Native Title Registrar under section 63 in relation to the application.
Copies to representative bodies
(2A) The Registrar must, as soon as is reasonably practicable, give the representative bodies for the area covered by the application a copy of:
(a) the application; and
(b) any other documents that the Federal Court Chief Executive Officer gives the Native Title Registrar under section 63 in relation to the application.
Notice to be given
(3) Subject to this section, the Registrar must:
(a) give notice containing details of the application to the following persons or bodies (other than the applicant in relation to the application):
(i) any registered native title claimant in relation to any of the area covered by the application; and
(ii) any registered native title body corporate in relation to any of the area covered by the application; and
(iii) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and
(iv) subject to subsection (5), any person who when the notice is given, holds a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory; and
(v) the Commonwealth Minister; and
(vi) any local government body for any of the area covered by the application; and
(vii) if the Registrar considers it appropriate in relation to the person—any person whose interests may be affected by a determination in relation to the application; and
(b) give a copy of the notice to the Federal Court; and
(c) if any of the area covered by the application is within the jurisdictional limits of a State or Territory—give a copy of the notice to the State Minister or Territory Minister for the State or Territory; and
(d) notify the public in the determined way of the application.
Exception where application is struck out
(4) Subsection (3) does not apply if:
(a) the State or Territory Minister applies to the Federal Court under subsection 84C(1) or otherwise, within 28 days after the day on which the State or Territory Minister is given a copy of the application under subsection (2), to strike out the application; and
(b) the Court strikes out the application.
Exception to subparagraph (3)(a)(iv)
(5) If the Registrar considers that, in the circumstances, it would be unreasonable to give notice to a person in accordance with subparagraph (3)(a)(iv), the Registrar is not required to give notice to that person.
Notice etc. not to be given until claim registration decision made
(6) If the application is a claimant application:
(a) the Registrar must not comply with subsection (3) until the Registrar has decided, in accordance with section 190A, whether or not to accept for registration the claim made in the application; and
(b) the notice required to be given under subsection (3) must state whether or not the Registrar has accepted the claim for registration.
Federal Court order as to notice
(7) The Registrar may apply to the Federal Court for an order as to:
(a) whether a particular person or class of persons must be given notice under paragraph (3)(a); or
(b) how such notice must be given.
Notice to specify day
(8) A notice under paragraph (3)(a) or (d) must specify a day as the notification day for the application. Each such notice in relation to the application must specify the same day.
Which days may be specified
(9) That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under paragraphs (3)(a) and (d) in relation to the application will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs.
Contents of notice
(10) A notice under paragraph (3)(a) or (d) must also include a statement to the effect that:
(a) in the case of a non‑claimant application (see section 253)—the area covered by the application may be subject to section 24FA protection unless, at the end of the period of 3 months starting on the notification day (as defined in subsection (8) of this section), the area is covered by a relevant native title claim (as defined in section 24FE); and
(b) in the case of any native title determination application—as there can be only one determination of native title for an area, if a person does not become a party in relation to the application, there may be no other opportunity for the Federal Court, in making its determination, to take into account the person’s native title rights and interests in relation to the area concerned; and
(c) in any case—a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day (as defined in subsection (8)), or, after that period, get the leave of the Federal Court under subsection 84(5) to become a party.
66A Notice of amended application
Native Title Registrar to notify parties etc.
(1) If:
(a) the Native Title Registrar is given a copy of an amended application under section 64; and
(b) the amendment concerned results in a change to the area of land or waters covered by the original application; and
(c) subsection (2) does not apply;
the Registrar must:
(d) give notice of the amended application to each person who, when the Registrar receives the copy, is a party to a proceeding under Part 4 in relation to the application; and
(e) if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended:
(i) give notice of the amended application to all persons to whom the Registrar gave notice of the application in accordance with paragraph 66(3)(a); and
(ii) notify the public in the determined way of the amended application; and
(f) if the inclusion of any area of land or waters that was not covered by the original application occurs as mentioned in subsection 64(2A)—give notice to each other person to whom the Registrar would be obliged to give notice under subsections 66(3) and (5) if the application as amended were a new application, but to whom notice is not already required to be given under paragraph (d) or (e).
Amending claims to re‑include area
(1A) If:
(a) the Registrar is given a copy of an amended application under section 64; and
(b) the amendment concerned is to re‑include in the area covered by the application an area of land or waters that was covered by the original application;
the Registrar must:
(c) give notice of the amended application to each person who, when the Registrar receives the copy, is a party to a proceeding under Part 4 in relation to the application; and
(d) if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended:
(i) give notice of the amended application to all persons to whom the Registrar gave notice of the application in accordance with paragraph 66(3)(a); and
(ii) notify the public in the determined way of the amended application; and
(e) give notice of the amended application to each person whom the Registrar would, under subsections 66(3) and 66(5), be obliged to give notice if the application as amended were a new application, but to whom notice is not already required to be given under paragraph (c) or (d).
Notification day
(1B) A notice under paragraph (1)(f) or (1A)(e) must specify a day as the notification day for the amendment.
(1C) Each such notice in relation to the amendment must:
(a) specify the same day; and
(b) state that a person who wants to be a party in relation to the amended application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day, or, after that period, get the leave of the Federal Court under subsection 84(5) to become a party.
Combined applications
(2) If an amended application of which the Registrar is given a copy under section 64 results from combining the application with one or more other applications, the Native Title Registrar must:
(a) give notice of the combining of the applications to each person who, immediately before the combining of the applications, was a party to a proceeding under Part 4 in relation to any of the applications; and
(b) if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended:
(i) give notice of the combining of the applications to all persons to whom the Registrar gave notice of the applications in accordance with paragraph 66(3)(a); and
(ii) notify the public in the determined way of the combining of the applications.
Federal Court order as to notice
(3) The Registrar may apply to the Federal Court for an order as to:
(a) whether a particular person or class of persons must be given notice under subsection (1) or (2); or
(b) how such notice must be given.
Federal Court may direct Native Title Registrar to give notice
(4) The Federal Court may, if it considers it necessary, direct the Native Title Registrar to give such additional notice of the amended application as the Court considers appropriate.
Parties to original applications become parties to combined application
(5) If an amended application of which the Registrar is given a copy under section 64 results from combining the application with one or more other applications, each person who, immediately before the combining of the applications, was a party to a proceeding under Part 4 in relation to any of the applications becomes a party to a proceeding under Part 4 in relation to the combined application.
66B Replacing the applicant
Replacement in case of consent or absence of authority
(1) One or more members of the native title claim group (the claim group) in relation to a claimant application, or of the compensation claim group (also the claim group) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that:
(a) one or more of the following applies to a person who is, either alone or jointly with one or more other persons, the current applicant:
(i) the person consents to his or her replacement or removal;
(iii) the person is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it;
(iv) the person has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and
(b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it.
Note: Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.
(2) The Court may make the order if it is satisfied that the grounds are established.
Replacement in case of death or incapacity
(2A) One or more members (the applying members) of the native title claim group in relation to a claimant application, or of the compensation claim group in relation to a compensation application, may apply to the Federal Court for an order under subsection (2B) if a person (the ceasing member) who is, either alone or jointly with one or more other persons (the continuing members), the current applicant for the claimant application or compensation application:
(a) dies; or
(b) is unable to act as an applicant because of physical or mental incapacity.
(2B) The Court may order that the following persons replace the current applicant for the application:
(a) if:
(i) a member of the claim group is authorised by the claim group to make the application and to deal with matters arising in relation to it because of the death or incapacity of the ceasing member; and
(ii) the authority of any continuing members continues despite the death or incapacity of the ceasing member;
that member and any continuing members;
(b) unless the authority of any continuing members ceases on the death or incapacity of the ceasing member—the continuing members;
(c) if the applying members are authorised by the claim group to make the application and to deal with matters arising in relation to it—the applying members.
Note: Section 251B states what it means for a person or persons to be authorised by all the persons in the claim group to deal with matters in relation to a claimant application or a compensation application.
Replacement by more than one person
(2C) If the Court orders under this section that the current applicant is replaced by more than one person, the persons are jointly the applicant.
Federal Court Chief Executive Officer to notify Native Title Registrar
(3) If the Court makes an order under this section, the Federal Court Chief Executive Officer must, as soon as practicable, notify the Native Title Registrar of the name and address for service of the person who is, or persons who are, the new applicant.
Register to be updated
(4) If the claim contained in the application is on the Register of Native Title Claims, the Registrar must amend the Register to reflect the order.
66C Registrar’s role in relation to certain applications relating to future acts
(1) If:
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