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Native Title Amendment Bill 1997 [No. 2]
Schedule 1 Amendments relating to acts affecting native title etc.

   

Native Title Act 1993

1  Paragraph 3(d)

After “past acts”, insert “, and intermediate period acts,”.

2  Section 4

Repeal the section, substitute:

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

                     (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.

3  Section 7

Repeal the section, substitute:

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 andthe 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.

4  Paragraph 11(2)(a)

Repeal the paragraph, substitute:

                     (a)  in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc. and native title) of Part 2; or

5  Paragraph 11(2)(b)

After “past acts”, insert “, or intermediate period acts,”.

6  Division 2 of Part 2 (heading)

Repeal the heading, substitute:

Division 2 Validation of past acts

7  Before Subdivision A of Division 2 of Part 2

Insert:

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.

8  At the end of subsection 15(1)

Add:

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

9  Division 3 of Part 2

Repeal the Division, substitute:

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 in writing by the Commonwealth Minister, to any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act about the doing or proposed doing of the act, or acts of that class, in relation to the land or waters concerned; and

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

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 the act being done. A future act (other than an intermediate period act) that has already been done invalidly may also be validated as a result of such agreements.

Other bases for validity

             (4)  A future act will also be valid to the extent covered by any of the following:

                     (a)  section 24FA (future acts where procedures indicate absence of native title);

                     (b)  section 24GB (acts permitting primary production on non-exclusive agricultural or pastoral leases);

                     (c)  section 24GD (acts permitting off-farm activities directly connected to primary production activities);

                     (d)  section 24GE (granting rights to third parties etc. on non-exclusive agricultural or pastoral leases);

                     (e)  section 24HA (management of water and airspace);

                      (f)  section 24IA (acts involving renewals and extensions etc. of acts);

                     (g)  section 24JA (acts involving reservations, leases etc.);

                     (h)  section 24KA (acts involving facilities for services to the public);

                      (i)  section 24LA (low impact future acts);

                      (j)  section 24MD (acts that pass the freehold test—but see subsection (5));

                     (k)  section 24NA (acts affecting offshore places).

Right to negotiate

             (5)  In the case of certain acts covered by section 24IC (permissible lease etc. renewals) or section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a “right to negotiate”).

Extinguishment/non-extinguishment; procedural rights and compensation

             (6)  This Division provides that, in general, valid future acts are subject to the non-extinguishment principle. The Division also deals with procedural rights and compensation for the acts.

Activities etc. prevail over native title

             (7)  To avoid doubt, section 44H provides that a valid lease, licence, permit or authority, and any activity done under it, prevail over any native title rights and interests and their exercise.

Statutory access rights

             (8)  This Division confers access rights in respect of non-exclusive agricultural and non-exclusive pastoral leases on certain persons covered by registered native title claims (see Subdivision Q).

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.

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;

                    (ea)  compensation for any past act, intermediate period act or future act;

                      (f)  any other matter concerning native title rights and interests in relation to the area.

Note 1:       If the agreement involves consent to the doing of a future act or class of future act, or the doing of a future act or class of future act subject to conditions, it must include a statement to that effect: see paragraph 24EB(1)(b).

Note 2:       If a future act covered by such a statement would otherwise be subject to the “right to negotiate” provisions in Subdivision P, the agreement must also include a statement that those provisions are not intended to apply: see paragraph 24EB(1)(c).

Note 3:       If the agreement involves the extinguishment of native title by surrender, it must include a statement to that effect: see paragraph 24EB(1)(d).

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

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

24BD   Parties to body corporate agreements

Registered native title bodies corporate

             (1)  All of the registered native title bodies corporate in relation to the area must be parties to the agreement.

Governments

             (2)  If the agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, a State or a Territory as mentioned in paragraph 24BB(e), the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party.

Others

             (3)  Any other person or persons may be parties.

Procedure where no representative body party

             (4)  If there are any representative Aboriginal/Torres Strait Islander bodies for any of the area and none of them is proposed to be a party to the agreement, the registered native title body corporate, before entering into the agreement:

                     (a)  must inform at least one of the representative Aboriginal/Torres Strait Islander bodies of its intention to enter into the agreement; and

                     (b)  may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement.

24BE   Consideration and conditions

             (1)  The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law).

Consideration may be freehold grant or other interests

             (2)  Without limiting subsection (1), the consideration may be the grant of a freehold estate in any land, or any other interests in relation to land whether statutory or otherwise.

24BF   Assistance to make body corporate agreements

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

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.

24BH   Notice of body corporate agreements

             (1)  The Registrar must:

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

                              (i)  the Commonwealth Minister;

                             (ii)  if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;

                            (iii)  any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;

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

                             (v)  any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and

                     (b)  notify the public in the determined way of the agreement in accordance with subsection (2).

Content of notice

             (2)  The notice under paragraph (1)(a) or (b) must:

                     (a)  describe the area covered by the agreement; and

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

                     (c)  set out any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b), (c) or (d).

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 Registrar gives notice under section 24BH, that the party does not wish the agreement to be registered on the Register.

             (3)  The Registrar must not register the agreement if:

                     (a)  a representative Aboriginal/Torres Strait Islander body for any of the area advises the Registrar, within 1 month after the Registrar gives notice under section 24BH, that the requirements of paragraph 24BD(4)(a) were not complied with in relation to the agreement; and

                     (b)  the Registrar is satisfied that the requirements were not complied with.

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;

                    (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 persons in the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement.

Native title group where registered claimant or body corporate

             (2)  If there is a registered native title claimant, or a registered native title body corporate, in relation to any of the land or waters in the area, the native title group consists of:

                     (a)  all registered native title claimants in relation to land or waters in the area; and

Note 1:    Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.

Note 2:    The agreement will bind all members of the native title claim group concerned: see paragraph 24EA(1)(b).

                     (b)  all registered native title bodies corporate in relation to land or waters in the area; and

                     (c)  if, for any part (the non-claimed/determined part ) of the land or waters in the area, there is neither a registered native title claimant nor a registered native title body corporate—one or more of the following:

                              (i)  any person who claims to hold native title in relation to land or waters in the non-claimed/determined part;

                             (ii)  any representative Aboriginal/Torres Strait Islander body for the non-claimed/determined part.

Native title group where no registered claimant or body corporate

             (3)  If subsection (2) does not apply, the native title group consists of one or more of the following:

                     (a)  any person who claims to hold native title in relation to land or waters in the area;

                     (b)  any representative Aboriginal/Torres Strait Islander body for the area.

Other native title parties

             (4)  If the native title group is covered by subsection (2), one or more of the following may also be parties to the agreement:

                     (a)  any other person who claims to hold native title in relation to land or waters in the area;

                     (b)  any representative Aboriginal/Torres Strait Islander body for the area.

Government parties

             (5)  If the agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, a State or Territory as mentioned in paragraph 24CB(e), the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party.

Other parties

             (6)  Any other person may be a party to the agreement.

Procedure where no representative body party

             (7)  If there are any representative Aboriginal/Torres Strait Islander bodies for any of the area and none of them is proposed to be a party to the agreement, a person in the native title group, before entering into the agreement:

                     (a)  must inform at least one of the representative Aboriginal/Torres Islander bodies of its intention to enter into the agreement; and

                     (b)  may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement.

Note:          The registration of agreements that are certified by a representative Aboriginal/Torres Strait Islander body is facilitated under section 24CK.

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

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

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 202(4)(e) in relation to the area; or

                     (b)  include a statement to the effect that the following requirements have been met:

                              (i)  all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;

                             (ii)  all of the persons so identified have authorised the making of the agreement;

Note:          The word authorise is defined in section 251A.

                            together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.

24CH   Notice of area agreements etc.

             (1)  The Registrar must:

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

                              (i)  the Commonwealth Minister;

                             (ii)  if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;

                            (iii)  any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;

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

                             (v)  any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and

                     (b)  notify the public in the determined way of the agreement in accordance with subsection (2).

Content of notice

             (2)  The notice under paragraph (1)(a) or (b) must:

                     (a)  describe the area covered by the agreement; and

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

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

                     (d)  include a statement that, within the period (the notice period ) of 3 months after the notification day (see subsection (3)):

                              (i)  if the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a))—any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraphs 202(8)(a) and (b) were not satisfied in relation to the certification; or

                             (ii)  if the application contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement)—any person claiming to hold native title in relation to land or waters in the area covered by the agreement may wish, in response to the notice, to make a native title determination application or equivalent application under a law of a State or Territory.

Notice to specify day

             (3)  The notice under paragraph (1)(a) or (b) must specify a day as the notification day for the agreement. Each such notice in relation to the agreement must specify the same day.

Which days may be specified

             (4)  That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under paragraph (1)(a) or (b) in relation to the agreement will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs.

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 paragraphs 202(8)(a) and (b) were not satisfied in relation to the certification.

Assistance in withdrawing objection

             (2)  If an objection is made within the notice period, the parties to the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating with the person making the objection with a view to having the objection withdrawn.

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 paragraphs 202(8)(a) and (b) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned.

Second condition

             (3)  The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement.

Matters to be taken into account

             (4)  In deciding whether he or she is satisfied as mentioned in paragraph (2)(c), the Registrar must take into account any information given in relation to the matter by:

                     (a)  the persons making the objections mentioned in that paragraph; and

                     (b)  the representative Aboriginal/Torres Strait Islander bodies that certified the application;

and may, but need not, take into account any other matter or thing.

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 persons are parties to the agreement:

                     (a)  any person who is, at the end of the notice period, a registered native title claimant or a registered native title body corporate in relation to any of the land or waters in the area covered by the agreement; and

                     (b)  any person who, after the end of the notice period, becomes a registered native title claimant in relation to any of the land or waters in the area covered by the agreement, where the application containing the claim was made before the end of the notice period and:

                              (i)  the claim is accepted by the Registrar for registration under subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy conditions equivalent to those set out in sections 190B and 190C under a law of a State or Territory; or

                             (ii)  the claim is accepted by the Registrar for registration as a result of an application under subsection 190D(2), where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

                            (iii)  the claim is found to satisfy conditions equivalent to those set out in sections 190B and 190C under a provision of a law of a State or Territory to similar effect as section 190D, and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii) of this paragraph.

Second condition

             (3)  The second condition is that the Registrar considers that the requirements in paragraph 24CG(3)(b) (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement) have been met.

Matters to be taken into account

             (4)  In deciding whether the requirements have been met, the Registrar must take into account:

                     (a)  the statements in the application; and

                     (b)  any information the Registrar is given on the matter by any representative Aboriginal/Torres Strait Islander body or by any other body or person;

and may, but need not, take into account any other matter or thing.

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 persons in the native title group (see subsection (2)) in relation to the area must be parties to the agreement, as must every relevant government (see subsection (3)).

Native title group

             (2)  The native title group consists of:

                     (a)  all registered native title bodies corporate in relation to land or waters in the area; and

                     (b)  all representative Aboriginal/Torres Strait Islander bodies for the area.

Relevant government

             (3)  Each of the following is a relevant government :

                     (a)  the Commonwealth, if any of the area covered by the agreement is a place outside the jurisdictional limits of the States and Territories;

                     (b)  a State or Territory, if any of the area covered by the agreement is within the jurisdictional limits of the State or Territory.

Other parties

             (4)  Any of the following may also be a party to the agreement:

                     (a)  any registered native title claimant in relation to land or waters in the area;

Note 1:    Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.

Note 2:    The agreement will bind all members of the native title claim group concerned: see paragraph 24EA(1)(b).

                     (b)  any other person who claims to hold native title in relation to land or waters in the area;

                     (c)  any other person.

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

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

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.

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)  describe the area covered by the agreement; and

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

                     (c)  set out any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b) or (c); and

                     (d)  include a statement that, within the period (the notice period ) of 3 months after the notification day (see subsection (3)), any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may:

                              (i)  obtain a copy of the agreement from the Registrar; and

                             (ii)  object, in writing to the Registrar, against registration of the agreement on the ground that it would not be fair and reasonable to do so.

Notice to specify day

             (3)  The notice must specify a day as the notification day for the agreement. Each such notice in relation to the agreement must specify the same day.

Which days may be specified

             (4)  That day must be a day by which, in the Registrar’s opinion, it is reasonable to assume that all notices under paragraph (1)(a) or (b) in relation to the agreement will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs.

Request for copy of agreement

             (5)  If a person claiming to hold native title in relation to any of the land or waters covered by the agreement requests a copy of the agreement, the Registrar must comply with the request.

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.

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.

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.

Non-extinguishment principle

             (3)  Unless a statement of the kind mentioned in paragraph (1)(d) in relation to the act is included in the agreement, the non-extinguishment principle applies to the act.

Restriction on compensation where Subdivision B agreement

             (4)  In the case of an agreement under Subdivision B, the following are not entitled to any compensation for the act under this Act, other than compensation provided for in the agreement:

                     (a)  any registered native title body corporate who is a party to the agreement;

                     (b)  any common law holder of native title:

                              (i)  for whom such a registered native title body corporate holds native title rights and interests on trust; or

                             (ii)  of whom such a registered native title body corporate is the agent or representative;

Note:       For the definition of common law holder , see section 56.

                     (c)  any native title holder who is entitled to any of the benefits provided under the agreement.

Restriction on compensation where Subdivision C agreement

             (5)  In the case of an agreement under Subdivision C, the following are not entitled to any compensation for the act under this Act, other than compensation provided for in the agreement:

                     (a)  any native title holder who is entitled to any of the benefits provided under the agreement;

                     (b)  any native title holder who authorised the making of the agreement as mentioned in:

                              (i)  if the application was certified by representative Aboriginal/Torres Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph 202(8)(b); or

                             (ii)  if the application included statements as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying all native title holders and ensuring that they have authorised the making of the agreement)—that paragraph.

Restriction on compensation where Subdivision D agreement

             (6)  In the case of an agreement under Subdivision D, no native title holder who is entitled to any of the benefits provided under the agreement is entitled to any compensation for the act under this Act, other than compensation provided for in the agreement.

Compensation under Division 5

             (7)  If any native title holder in relation to the land or waters covered by the agreement (except one who, because of subsection (4), (5) or (6), is not entitled to compensation other than that provided for in the agreement) would be entitled to compensation under subsection 17(2) for the act on the assumption that it was a past act referred to in that subsection:

                     (a)  he or she is entitled, in accordance with Division 5, to compensation for the act; and

                     (b)  he or she may recover the compensation from:

                              (i)  if subparagraph (ii) does not apply—the Crown in right of the Commonwealth, a State or a Territory (according to whether the act is attributable to the Commonwealth, the State or the Territory); or

                             (ii)  any person or persons who, under an agreement in writing with the Commonwealth, the State or the Territory, are liable to pay the compensation.

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.

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).

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 190D(2) and the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

                            (iii)  the claim is found to satisfy conditions equivalent to those set out in sections 190B and 190C under a provision of a law of a State or Territory to similar effect as section 190D, and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii).

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 in writing 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 in writing 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 in writing 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 in writing 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.

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 in writing 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 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 in writing 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 in writing 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;

                    (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 has been no approved determination of the native title;

then one way in which the person may give the required notification is by notifying, in the way determined in writing 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 the area concerned;

                     (d)  any registered native title claimants in relation to land or waters in the area concerned.

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 has been no approved determination of the native title;

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 the area concerned; or

                     (d)  if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for the area concerned 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;

Note:          The acts covered by paragraphs (a) and (b) are not covered by Subdivision P: see subsection (6) and paragraph 26(1)(c).

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 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;

                            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 any claimant or body corporate objects, as mentioned in paragraph (d), to the doing of the act and so requests, 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 has been no approved determination of the native title;

then one way in which the person may give the required notification is by notifying, in the way determined in writing 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 the area concerned;

                     (d)  any registered native title claimants in relation to land or waters in the area concerned.

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 has been no approved determination of the native title;

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 the area concerned; or

                     (d)  if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for the area concerned 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 has been no approved determination of the native title;

then one way in which the person may give the required notification is by notifying, in the way determined in writing 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 the area concerned;

                     (d)  any registered native title claimants in relation to land or waters in the area concerned.

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 has been no approved determination of the native title;

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 the area concerned; or

                     (d)  if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for the area concerned 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.

             (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, in writing, 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 in writing by the Commonwealth Minister to be an approved exploration etc. act (see section 26A); or

                     (c)  an act determined in writing 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 determine in writing 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—in writing, revoke the determination; or

                     (b)  if the act or acts are done by the Commonwealth—in writing, revoke the determination.

26B   Approved gold or tin mining acts

             (1)  If the conditions in this section are satisfied, the Commonwealth Minister may determine in writing 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—in writing, 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 determine in writing 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—in writing, 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)  a trustee who is holding an amount in trust under this Subdivision in respect of the act until it is dealt with in accordance with section 52 is informed by the Government party as mentioned in paragraph 52(1)(b) that it no longer proposes to do the act; and

                     (b)  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:       Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253.

                             (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)  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 person 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 person ceases to be a native title party if the person 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)  a person becomes a registered native title claimant because the person replaces another person as the applicant in relation to a claimant application; and

                     (b)  the other person is a native title party;

the first-mentioned person also replaces the other person 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).

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.

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 expected 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), 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.

Trust condition

             (5)  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 52:

                     (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 52.

Note:          The NNTT cannot determine compensation (see Division 5 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).

Trust condition

             (3)  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 52:

                     (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 52.

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.

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.

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.

Trust condition

             (5)  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 52:

                     (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 52.

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 in writing 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 trusts on similar terms to those in subsections 36C(5), 41(3) and 42(5); 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.

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—in writing, 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 in writing 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;

                            in writing, revoke the determination made under paragraph (1)(b).

Note:       A determination mentioned in subparagraph (c)(ii) is a disallowable instrument: see section 214.

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.

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 in writing 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—in writing, 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 in writing 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;

                            in writing, revoke the determination made under paragraph (1)(b).

Note:       A determination mentioned in subparagraph (c)(ii) is a disallowable instrument: see section 214.

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.

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

                   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.

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).

10  Before section 45

Insert:

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.

11  Paragraph 47(3)(c)

Omit “proposed”.

12  Paragraph 47(3)(c)

Omit “Subdivision B”, substitute “Subdivision P”.

13  After section 47

Insert:

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.

14  Sections 48 and 49 and subsection 51(1)

After “Division 2,”, insert “2A, 2B,”.

15  Subsection 50(1)

Omit “section”, substitute “Division”.

Note:       The heading to subsection 50(1) is altered by omitting “ Section ” and substituting “ Division ”.

16  At the end of subsection 50(1)

Add:

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).

17  Subsection 51(2)

Omit “acquisition under a Compulsory Acquisition Act”, substitute “compulsory acquisition”.

18  Subsection 51(2)

Omit “set out in that Act for determining compensation”, substitute “for determining compensation set out in the law under which the compulsory acquisition takes place”.

Note:       The heading to subsection 51(2) is altered by omitting “ Compulsory Acquisition Act ” and substituting “ compulsory acquisition law ”.

19  Paragraph 51(3)(a)

Omit “acquisition under a Compulsory Acquisition Act”, substitute “compulsory acquisition”.

20  Paragraph 51(4)(b)

Omit “Compulsory Acquisition Act”, substitute “compulsory acquisition law”.

21  Subsection 51(4)

Omit “that Act”, substitute “that law”.

22  After section 51

Insert:

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).

23  Subsection 52(1)

Omit “compensation (the negotiated compensation ) in respect of a proposed act is being held in trust in accordance with”, substitute “an amount (the trust amount ) in respect of an act is being held in trust in accordance with paragraph 36C(5)(b),”.

Note:       The heading to section 52 is altered by omitting “ Compensation ” and substituting “ Payment ”.

24  Paragraph 52(1)(b)

Omit “no longer proposes”, substitute “is not going”.

25  Subparagraph 52(1)(c)(ii)

Repeal the subparagraph, substitute:

                             (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; and

                            (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;

26  Subparagraph 52(1)(d)(ii)

Omit “Compulsory Acquisition Act”, substitute “compulsory acquisition law”.

27  Paragraph 52(1)(e)

Omit “negotiated compensation”, substitute “trust amount”.

28  Subsections 52(2) to (7)

Omit “negotiated compensation” (wherever occurring), substitute “trust amount”.

29  Paragraph 52(3)(b)

Omit “2, 3 or 4”, substitute “3”.

30  Paragraph 53(1)(a)

Omit “by the Commonwealth”.

31  Subsection 53(1)

Omit “from the Commonwealth as is necessary to ensure that the acquisition is made on paragraph 51(xxxi) just terms.”, substitute:

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.

32  Paragraph 137(2)(a)

After “past acts”, insert “or intermediate period acts”.

33  Section 142

After “Subject to”, insert “subsection 151(2) and”.

34  After Part 8

Insert:

Part 8A Register of Indigenous Land Use Agreements

   

199A   Register of Indigenous Land Use Agreements

Establishment

             (1)  There is to be a Register known as the Register of Indigenous Land Use Agreements.

Registrar to establish and keep

             (2)  The Register must be established and kept by the Registrar.

Register may be kept by computer

             (3)  The Register may be kept by use of a computer.

199B   Contents of the Register etc.

Information to be included

             (1)  If the Registrar is required by Subdivision B, C or D of Division 3 of Part 2 to register an agreement, the Registrar must enter in the Register the following details of the agreement:

                     (a)  a description of the area covered by the agreement; and

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

                     (c)  if the agreement specifies the period during which it will operate—that period; and

                     (d)  if the agreement includes any of the statements mentioned in subsection 24EB(1) or 24EBA(1) or (4)—a reference to the fact, setting out any such statement.

Other information

             (2)  The Registrar may also enter in the Register any other details of the agreement that the Registrar considers appropriate.

Notification of Commonwealth, State or Territory

             (3)  If the agreement relates to any future act, as soon as reasonably practicable after entering the details, the Registrar must give notice in writing:

                     (a)  advising that the details have been entered; and

                     (b)  setting out the details;

to any person or body to which the Registrar gave notice of the agreement under paragraph 24BH(1)(a), 24CH(1)(a) or 24DI(1)(a).

199C   Removal of details of agreement from Register

Cases requiring removal

             (1)  Subject to subsection (1A), the Registrar must remove the details of an agreement from the Register if:

                     (a)  in the case of an agreement under Subdivision B of Division 3 of Part 2—an approved determination of native title is made in relation to any of the area covered by the agreement, and the persons who, under the determination, hold native title in relation to the area are not the same as those who had previously been determined to hold it; or

                     (b)  in the case of an agreement under Subdivision C of Division 3 of Part 2—an approved determination of native title is made in relation to any of the area covered by the agreement, and any of the persons who, under the determination, hold native title in relation to the area is not a person who authorised the making of the agreement as mentioned in:

                              (i)  if the application relating to the agreement was certified by representative Aboriginal/Torres Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph 202(8)(b); or

                             (ii)  if the application relating to the agreement included a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met—that paragraph; or

                     (c)  in any case:

                              (i)  the agreement expires; or

                             (ii)  all the parties advise the Registrar in writing that they wish to terminate the agreement; or

                            (iii)  the Federal Court, under subsection (2), orders the details to be removed.

Note:          If the details of an agreement are removed from the Register, the agreement will cease to have effect under this Act from the time the details are removed: see subsection 24EA(1) and paragraph 24EB(1)(b).

Federal Court order not to remove details

          (1A)  If:

                     (a)  the Registrar is or will be required to remove the details of an agreement from the Register in a case covered by paragraph (1)(a) or (b); and

                     (b)  the persons who, under the approved determination of native title mentioned in that paragraph, hold native title apply to the Federal Court for an order under this subsection; and

                     (c)  the Federal Court is satisfied that those persons accept the terms of the agreement, in accordance with the process by which they would authorise the making of such an agreement;

the Federal Court may order the Registrar not to remove the details of the agreement from the Register.

Federal Court order to remove details

             (2)  The Federal Court may, if it is satisfied on application by a party to the agreement, or by a representative Aboriginal/Torres Strait Islander body for the area covered by the agreement, that the ground in subsection (3) has been made out, order the Registrar to remove the details of the agreement from the Register.

Ground for order

             (3)  The ground is that a party would not have entered into the agreement but for fraud, undue influence or duress by any person (whether or not a party to the agreement).

Compensation order

             (4)  If the Court orders the Registrar to remove the details, the Court may also order the person who committed the fraud, exerted the influence or applied the duress to pay compensation to any party to the agreement who will suffer loss or damage as a result of the removal of the details.

199D   Inspection of the Register

Register to be available during business hours

             (1)  Subject to section 199E, the Registrar must ensure that the Register is available for inspection by any member of the public during normal business hours.

Prescribed fee

             (2)  Subject to section 199E, when the Register is available for inspection, any member of the public may inspect the Register if the member pays the prescribed fee.

If register kept on computer

             (3)  If the Register is kept wholly or partly by use of a computer, subsection (1) is taken to be complied with, so far as the Register is kept in that way, by giving members of the public access to a computer terminal that they can use to inspect the Register, either by viewing a screen display or by obtaining a computer print-out.

199E   Parts of the Register to be kept confidential

             (1)  If the parties to an agreement whose details are entered on the Register advise the Registrar in writing that they do not wish some or all of the details to be available for inspection by the public, section 199D does not apply to the part of the Register containing the details concerned.

Exception for basic information

             (2)  Subsection (1) does not apply to details required to be entered in the Register under subsection 199B(1).

199F   Delegation by Registrar

                   The Registrar may, by signed instrument, delegate all or any of his or her powers under:

                     (a)  this Part; or

                     (b)  Subdivision B, C or D of Division 3 of Part 2 (which also deals with indigenous land use agreements);

to the holder of an office, or to a body, established by or under a law of a State or Territory, if the State or Territory agrees to the delegation.

35  After paragraph 211(1)(b)

Insert:

                    (ba)  the law does not provide that such a licence, permit or other instrument is only to be granted or issued for research, environmental protection, public health or public safety purposes; and

36  After paragraph 212(2)(d)

Insert:

                    (da)  stock-routes; or

37  At the end of subsection 211(2)

Add:

Note:          In carrying on the class of activity, or gaining the access, the native title holders are subject to laws of general application.

38  Subsection 212(3)

Omit “or impair”.

Note:       The heading to subsection 212(3) is altered by omitting “ under subsection (2) ”.

39  Section 214

Repeal the section, substitute:

214   Disallowable instruments

                   The following are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901 :

                     (a)  a determination under paragraph 23HA(a), 24GB(9)(c) or 24GD(6)(a), subparagraph 24GE(1)(f)(i), paragraph 24HA(7)(a), 24ID(3)(a) or 24JB(6)(a) or (7)(a), subsection 24KA(8), 24MD(7), 24NA(9), 26A(1), 26B(1) or 26C(2), paragraph 43(1)(b), subparagraph 43(3)(c)(ii), paragraph 43A(1)(b), subparagraph 43A(9)(c)(ii), subsection 202(1), 207A(1), 207B(3), 245(4), 251C(4) or (5) or 252(1) or paragraph (i) of the definition of infrastructure facility in section 253;

                     (b)  an instrument under section 203AD;

                     (c)  an approval under subparagraph 26(1)(c)(iv);

                     (d)  a revocation of a determination under subsection 26A(8), 26B(9), 26C(6), 43(3) or 43A(9) or paragraph 207A(4)(b) or 207B(7)(d).

40  Subparagraph 215(2)(a)(i)

After “Register of Native Title Claims”, insert “, the Register of Indigenous Land Use Agreements”.

41  At the end of section 215

Add:

Registers

             (3)  Without limiting subsection (1), the regulations may make provision, not inconsistent with this Act, relating to the way in which:

                     (a)  the Register of Native Title Claims; or

                     (b)  the Register of Indigenous Land Use Agreements; or

                     (c)  the National Native Title Register;

is to be established and kept, or relating to any other matter concerning such a register.

42  Subsection 223(3)

Omit “subsection (4)”, substitute “subsections (3A) and (4)”.

43  After subsection 223(3)

Insert:

Subsection (3) does not apply to statutory access rights

          (3A)  Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).

44  After section 232

Insert:

232A   Intermediate period act

             (1)  This section defines intermediate period act .

Note:          Intermediate period acts may be validated under Division 2A of Part 2.

Acts between 1.1.94 and 23.12.96

             (2)  Subject to subsection (3), an act is an intermediate period act if:

                     (a)  the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996 when native title existed in relation to particular land or waters; and

                     (b)  the act did not consist of the making, amendment or repeal of legislation, other than legislation that affects the native title by:

                              (i)  creating a freehold estate, lease or licence over the land or waters; or

                             (ii)  containing, making or conferring a reservation, proclamation or dedication under which the whole or part of the land or waters is to be used for a particular purpose; and

Note:       An intermediate period act, such as the grant of a lease, may be validated under Division 2A of Part 2 even if the legislation under which the act was done is not so validated.

                     (c)  the act was invalid to any extent because of Division 3 of Part 2 (disregarding section 24EBA) or for any other reason, but it would have been valid to that extent if the native title did not exist; and

                     (d)  the act was not a past act (see section 228); and

                     (e)  at any time before the act was done, either:

                              (i)  a grant of a freehold estate or a lease (other than a mining 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; and

                      (f)  the grant, or the construction or establishment, mentioned in paragraph (e) was valid (including because of any provision of this Act).

Exclusion by regulation

             (3)  The regulations may provide that an act is not an intermediate period act .

232B   Category A intermediate period act

             (1)  This section defines the expression category A intermediate period act .

Grant of freehold estates

             (2)  An intermediate period act consisting of the grant or vesting of a freehold estate is a category A intermediate period act .

Grant of certain leases etc.

             (3)  An intermediate period act consisting of the grant or vesting of:

                     (a)  a Scheduled interest (see section 249C); or

                     (b)  a commercial lease that is neither an agricultural lease nor a pastoral lease; or

                     (c)  an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A); or

                     (d)  a residential lease; or

                     (e)  a community purposes lease (see section 249A); or

                      (f)  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”; or

                     (g)  any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters;

is a category A intermediate period act .

Vesting of certain land or waters

             (4)  If:

                     (a)  an intermediate period act is done by or under legislation of a State or a Territory; and

                     (b)  the intermediate period act consists of the vesting of particular land or waters in any person; and

                     (c)  a right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation;

the intermediate period act is a category A intermediate period act .

Construction of public works

             (7)  An intermediate period act consisting of the construction or establishment of any public work is a category A intermediate period act .

             (8)  An intermediate period act is not a category A intermediate period 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.

Exclusion by regulation

             (9)  The regulations may provide that an act is not a category A intermediate period act .

232C   Category B intermediate period act

                   A category B intermediate period act is an intermediate period act consisting of the grant of a lease if:

                     (a)  the grant is not a category A intermediate period act; and

                     (b)  the lease is not:

                              (i)  a mining lease; or

                             (ii)  a lease granted by or under legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

                            (iii)  a lease granted expressly for the benefit of, or to a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

                            (iv)  any other lease granted over particular land or waters, if at the time a lease covered by subparagraph (ii) or (iii) is in force over the land or waters.

232D   Category C intermediate period act

                   A category C intermediate period act is an intermediate period act consisting of the grant of a mining lease.

232E   Category D intermediate period act

                   A category D intermediate period act is any intermediate period act that is not a category A intermediate period act, a category B intermediate period act or a category C intermediate period act.

45  Subsection 233(2)

Repeal the subsection, substitute:

Validation and extinguishment legislation excluded

             (2)  If:

                     (a)  the act consists of the making, amendment or repeal of legislation; and

                     (b)  the act purports to:

                              (i)  validate any past act or intermediate period act; or

                             (ii)  extinguish native title, or extinguish native title rights and interests to an extent; and

                     (c)  the act is done or permitted to be done by Division 2, 2A or 2B of Part 2;

subsection (1) does not apply to the extent that the act purports to validate the act, or to extinguish the native title or the native title rights and interests.

46  Sections 234, 235 and 236

Repeal the sections.

47  Paragraph 237(a)

Repeal the paragraph, substitute:

                     (a)  the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

48  Paragraphs 237(b) and (c)

Omit “does not”, substitute “is not likely to”.

49  Paragraph 237(c)

Omit “will”, substitute “is likely to”.

50  After section 237

Insert:

237A   Extinguish

                   The word extinguish , in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.

51  Section 240 (definition of similar compensable interest test )

After “past act”, insert “, an intermediate period act”.

52  At the end of section 247

Add:

Aquaculture

             (2)  Except in so far as the expression is used in or in relation to Division 2 of Part 2, agricultural lease also includes a lease that permits the lessee to use the land or waters covered by the lease solely or primarily for aquacultural purposes.

53   After section 247

Insert:

247A   Exclusive agricultural lease

                   An exclusive agricultural lease is an agricultural lease that:

                     (a)  confers a right of exclusive possession over the land or waters covered by the lease; or

                     (b)  is a Scheduled interest.

247B   Non-exclusive agricultural lease

                   A non-exclusive agricultural lease is an agricultural lease that is not an exclusive agricultural lease.

Note:          In practice, there might be few, or no, non-exclusive agricultural leases.

54  After section 248

Insert:

248A   Exclusive pastoral lease

                   An exclusive pastoral lease is a pastoral lease that:

                     (a)  confers a right of exclusive possession over the land or waters covered by the lease; or

                     (b)  is a Scheduled interest.

248B   Non-exclusive pastoral lease

                   A non-exclusive pastoral lease is a pastoral lease that is not an exclusive pastoral lease.

55   After section 249

Insert:

249A   Community purposes lease

                   A community purposes lease is a lease that:

                     (a)  permits the lessee to use the land or waters covered by the lease solely or primarily for community, religious, educational, charitable or sporting purposes; or

                     (b)  contains a statement to the effect that it is solely or primarily a community purposes lease or that it is granted solely or primarily for community, religious, educational, charitable or sporting purposes.

249B   Perpetual lease

                   A perpetual lease is a lease with the following features:

                     (a)  the lease is in perpetuity;

                     (b)  the lease may be forfeited, cancelled or otherwise cease to have effect for failure to pay rent or for contravention of a condition or conditions.

249C   Scheduled interest

             (1)  A Scheduled interest is:

                     (a)  anything set out in Schedule 1, other than a mining lease or anything whose grant or vesting is covered by subsection 23B(9), (9A), (9B), (9C) or (10) (which provide that certain acts are not previous exclusive possession acts); or

                     (b)  an interest, in relation to land or waters, of a type declared by a regulation for the purposes of this paragraph to be a Scheduled interest.

Regulations to cover single type of interest only

             (2)  A particular regulation only has effect for the purposes of paragraph (1)(b) if it covers a single type of interest.

Regulations to cover exclusive possession interests only

             (3)  Before the Governor-General makes a regulation for the purposes of paragraph (1)(b) declaring a particular interest to be a Scheduled interest, the Minister must be satisfied that the interest confers a right of exclusive possession that extinguishes all native title rights and interests over the land or waters concerned.

56  Before section 252

Insert:

251A   Authorising the making of indigenous land use agreements

                   For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorise the making of the agreement if:

                     (a)  where there is a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind—the persons authorise the making of the agreement in accordance with that process; or

                     (b)  where there is no such process—the persons authorise the making of the agreement in accordance with a process of decision-making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.

251B   Authorising the making of applications

                   For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

                     (a)  where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

                     (b)  where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

251C   Towns and cities

Areas in Western Australia

             (1)  Subject to subsection (4), a particular area in Western Australia is a town or city if, as at 23 December 1996, it was gazetted as a townsite or as suburban lands under section 10 of the Land Act 1933 of Western Australia.

Areas in South Australia

             (2)  Subject to subsection (4), a particular area in South Australia is a town or city if, as at 23 December 1996, it was:

                     (a)  within the boundaries of a town constituted under section 5(g) of the Crown Lands Act 1929 of South Australia; or

                     (b)  set apart as town lands, or suburban lands, by notice under section 5(h) of that Act; or

                     (c)  town lands, park lands, or suburban lands, within the meaning of section 4 of that Act; or

                     (d)  gazetted in the South Australian Government Gazette, or proclaimed by the Governor of South Australia, as suburban lands, where the gazettal took place, or the proclamation was made, before the enactment of the Crown Lands Act 1929 of South Australia; or

                     (e)  a township within the meaning of section 5(1) of the Local Government Act, 1934 of South Australia; or

                      (f)  park land, within the meaning of section 5(1) of that Act, that was within or adjacent to a township within the meaning of that section; or

                     (g)  the area in relation to which a municipal council was constituted under section 6 of that Act; or

                     (h)  a township within the meaning of section 319 of that Act; or

                      (i)  a township allotment within the meaning of section 5 of the Renmark Irrigation Trust Act 1936 of South Australia; or

                      (j)  town lands within the meaning of section 5 of the Water Conservation Act 1936 of South Australia.

Areas in the Northern Territory

             (3)  Subject to subsection (4), a particular area in the Northern Territory is a town or city if, as at 23 December 1996, it was:

                     (a)  gazetted as a town (other than the town of Darwin, Hatches Creek, Brocks Creek, Burrundie or Urapunga) under subsection 95(1) of the Crown Lands Act of the Northern Territory; or

                     (b)  the area in the Schedule to the Darwin Lands Acquisition Act 1945 of the Commonwealth; or

                     (c)  within a municipality constituted under section 29 of the Local Government Act of the Northern Territory.

Exclusion of areas in Western Australia, South Australia or Northern Territory

             (4)  A particular area is not a town or city under subsection (1), (2) or (3) if the Commonwealth Minister makes a written determination to that effect.

Other areas

             (5)  A particular area in any State or Territory is a town or city if the Commonwealth Minister makes a written determination stating that, in his or her opinion, the area was a town or a city as at 23 December 1996.

Exclusion of ordinary meaning

             (6)  Except as mentioned in this section, an area is not a town or city .

251D   Land or waters on which a public work is constructed, established or situated

                   In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

57  Section 253

Insert:

authorise :

                     (a)  in relation to the making of indigenous land area agreements—has the meaning given by section 251A; and

                     (b)  in relation to the making of native title determination applications or compensation applications, and dealing with matters arising in relation to such applications—has the meaning given by section 251B.

58  Section 253 (definition of Compulsory Acquisition Act )

Repeal the definition.

59  Section 253

Insert:

forest operations means:

                     (a)  the planting or tending, in a plantation or forest, of trees intended for felling; or

                     (b)  the felling of such trees.

60  Section 253 (definition of grantee party )

Omit “paragraph 29(2)(d)”, substitute “paragraph 29(2)(c)”.

61  Section 253

Insert:

horticulture includes:

                     (a)  propagation or maintenance, as well as cultivation; or

                     (b)  propagation, maintenance or cultivation of seeds, bulbs, spores or similar things; or

                     (c)  propagation, maintenance or cultivation of fungi; or

                     (d)  propagation, maintenance or cultivation in environments other than soil, whether natural or artificial.

62  Section 253

Insert:

indigenous land use agreement has the meaning given by sections 24BA, 24CA and 24DA.

63  Section 253

Insert:

infrastructure facility includes any of the following:

                     (a)  a road, railway, bridge or other transport facility;

                     (b)  a jetty or port;

                     (c)  an airport or landing strip;

                     (d)  an electricity generation, transmission or distribution facility;

                     (e)  a storage, distribution or gathering or other transmission facility for:

                              (i)  oil or gas; or

                             (ii)  derivatives of oil or gas;

                      (f)  a storage or transportation facility for coal, any other mineral or any mineral concentrate;

                     (g)  a dam, pipeline, channel or other water management, distribution or reticulation facility;

                     (h)  a cable, antenna, tower or other communication facility;

                      (i)  any other thing that is similar to any or all of the things mentioned in paragraphs (a) to (h) and that the Commonwealth Minister determines in writing to be an infrastructure facility for the purposes of this paragraph.

64  Section 253 (paragraph (c) of the definition of mine )

Repeal the paragraph, substitute:

                     (c)  quarry;

but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than:

                     (d)  extracting, producing or refining minerals from the sand, gravel, rocks or soil; or

                     (e)  processing the sand, gravel, rocks or soil by non-mechanical means.

65  Section 253 (definition of negotiation party )

Repeal the definition, substitute:

negotiation party has the meaning given by section 30A.

66  Section 253 (definition of public work )

Repeal the definition, substitute:

public work means:

                     (a)  any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:

                              (i)  a building, or other structure (including a memorial), that is a fixture; or

                             (ii)  a road, railway or bridge; or

                           (iia)  where the expression is used in or for the purposes of Division 2 or 2A of Part 2—a stock-route; or

                            (iii)  a well, or bore, for obtaining water; or

                            (iv)  any major earthworks; or

                     (b)  a building that is constructed with the authority of the Crown, other than on a lease.

Note:          In addition, section 251D deals with land or waters relating to public works.

67  Section 253

Insert:

Register of Indigenous Land Use Agreements means the register established and maintained under Part 8A.

68  Section 253 (definition of statutory authority )

After “authority or body”, insert “(including a corporation sole)”.

69  Section 253

Insert:

subject to section 24FA protection has the meaning given by Subdivision F of Division 3 of Part 2.