The following table lists the definitions
in this Part and shows their location:
List of Definitions
|
|
Expression
|
Section
|
Aboriginal peoples
|
253
|
Aboriginal/Torres Strait Islander land or waters
|
253
|
act
|
226
|
act attracting the expedited procedure
|
237
|
affect
|
227
|
agent prescribed body corporate
|
253
|
agricultural lease
|
247
|
applicant
|
253
|
approved determination of native title
|
253
|
arbitral body
|
253
|
assessor
|
253
|
attributable
|
239
|
authorise
|
253
|
category A intermediate period act
|
232B
|
category A past act
|
229
|
category B intermediate period act
|
232C
|
category B past act
|
230
|
category C intermediate period act
|
232D
|
category C past act
|
231
|
category D intermediate period act
|
232E
|
category D past act
|
232
|
Chief Justice
|
253
|
claimant application
|
253
|
coastal sea
|
253
|
commercial lease
|
246
|
common law holders
|
253
|
Commonwealth Minister
|
253
|
community purposes lease
|
249A
|
CSC
|
253
|
determination of native title
|
225
|
exclusive agricultural lease
|
247A
|
exclusive pastoral lease
|
248A
|
explore
|
253
|
extinguish
|
237A
|
Federal Court
|
253
|
forest operations
|
253
|
former judge
|
253
|
future act
|
233
|
Government party
|
253
|
grantee party
|
253
|
horticulture
|
253
|
indigenous land use agreement
|
253
|
infrastructure facility
|
253
|
interest
|
253
|
intermediate period act
|
232A
|
Judge
|
253
|
jurisdictional limits
|
253
|
land
|
253
|
land or waters on which a public work is constructed,
established or situated
|
251D
|
lease
|
242
|
lessee
|
243
|
major earthworks
|
253
|
member
|
253
|
mine
|
253
|
mining lease
|
245
|
National Native Title Register
|
253
|
National Native Title Tribunal
|
253
|
native title
|
223
|
native title application inquiry
|
253
|
native title claim group
|
253
|
native title group
|
24CD, 24DE
|
native title holder
|
224
|
native title party
|
253
|
Native Title Registrar
|
253
|
native title rights and interests
|
223
|
negotiation party
|
253
|
NNTT
|
253
|
non‑claimant application
|
253
|
non‑exclusive agricultural lease
|
247B
|
non‑exclusive pastoral lease
|
248B
|
non‑extinguishment principle
|
238
|
non‑presidential member
|
253
|
notify the public in the determined way
|
252
|
offshore place
|
253
|
onshore place
|
253
|
ordinary title
|
253
|
paragraph 51(xxxi) acquisition of property
|
253
|
paragraph 51(xxxi) just terms
|
253
|
past act
|
228
|
pastoral lease
|
248
|
permit
|
244
|
perpetual lease
|
249B
|
prescribed
|
253
|
President
|
253
|
presidential member
|
253
|
previous exclusive possession act
|
23B
|
previous non‑exclusive possession act
|
23F
|
primary production activity
|
24GA
|
procedural right
|
253
|
public education facilities
|
253
|
public health facilities
|
253
|
public housing
|
253
|
public work
|
253
|
recognised State/Territory body
|
253
|
Register of Indigenous Land Use Agreements
|
253
|
Register of Native Title Claims
|
253
|
registered native title body corporate
|
253
|
registered native title claimant
|
253
|
Registrar
|
253
|
representative Aboriginal/Torres Strait Islander body
|
253
|
representative body
|
253
|
residential lease
|
249
|
right to negotiate application
|
253
|
Scheduled interest
|
249C
|
similar compensable interest test
|
240
|
special matter
|
253
|
State Minister
|
253
|
statutory authority
|
253
|
subject to section 24FA protection
|
253
|
subsection 24DJ(1) objection application
|
253
|
Territory Minister
|
253
|
Torres Strait Islander
|
253
|
town or city
|
251C
|
traditional activity
|
44A
|
Tribunal
|
253
|
valid
|
253
|
waters
|
253
|
Common law rights and interests
(1) The expression native title
or native title rights and interests means the communal, group or
individual rights and interests of Aboriginal peoples or Torres Strait
Islanders in relation to land or waters, where:
(a) the rights and interests are
possessed under the traditional laws acknowledged, and the traditional customs
observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres
Strait Islanders, by those laws and customs, have a connection with the land or
waters; and
(c) the rights and interests are
recognised by the common law of Australia.
Hunting, gathering and fishing covered
(2) Without limiting subsection (1), rights
and interests in that subsection includes hunting, gathering, or fishing,
rights and interests.
Statutory rights and interests
(3) Subject to subsections (3A) and (4),
if native title rights and interests as defined by subsection (1) are, or
have been at any time in the past, compulsorily converted into, or replaced by,
statutory rights and interests in relation to the same land or waters that are
held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those
statutory rights and interests are also covered by the expression native
title or native title rights and interests.
Note: Subsection (3) cannot have any operation
resulting from a future act that purports to convert or replace native title
rights and interests unless the act is a valid future act.
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).
Case not covered by subsection (3)
(4) To avoid any doubt, subsection (3)
does not apply to rights and interests created by a reservation or condition
(and which are not native title rights and interests):
(a) in a pastoral lease granted before
1 January 1994; or
(b) in legislation made
before 1 July 1993, where the reservation or condition applies because
of the grant of a
pastoral lease before 1 January 1994.
The expression native title holder,
in relation to native title, means:
(a) if a prescribed body corporate is
registered on the National Native Title Register as holding the native title
rights and interests on trust—the prescribed body corporate; or
(b) in any other case—the person or
persons who hold the native title.
A determination of native title
is a determination whether or not native title exists in relation to a
particular area (the determination area) of land or waters and,
if it does exist, a determination of:
(a) who the persons, or each group of
persons, holding the common or group rights comprising the native title are;
and
(b) the nature and extent of the
native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other
interests in relation to the determination area; and
(d) the relationship between the
rights and interests in paragraphs (b) and (c) (taking into account the
effect of this Act); and
(e) to the extent that the land or
waters in the determination area are not covered by a non‑exclusive
agricultural lease or a non‑exclusive pastoral lease—whether the native title
rights and interests confer possession, occupation, use and enjoyment of that
land or waters on the native title holders to the exclusion of all others.
Note: The determination may deal with the matters in
paragraphs (c) and (d) by referring to a particular kind or particular
kinds of non‑native title interests.
Section affects meaning of act in references
relating to native title
(1) This section affects the meaning of act
in references to an act affecting native title and in other references in
relation to native title.
Certain acts included
(2) An act includes any of the
following acts:
(a) the making, amendment or repeal of
any legislation;
(b) the grant, issue, variation,
extension, renewal, revocation or suspension of a licence, permit, authority or
instrument;
(c) the creation, variation,
extension, renewal or extinguishment of any interest in relation to land or
waters;
(d) the creation, variation,
extension, renewal or extinguishment of any legal or equitable right, whether
under legislation, a contract, a trust or otherwise;
(e) the exercise of any executive
power of the Crown in any of its capacities, whether or not under legislation;
(f) an act having any effect at
common law or in equity.
Acts by any person
(3) An act may be done by the
Crown in any of its capacities or by any other person.
An act affects native
title if it extinguishes the native title rights and interests or if it is
otherwise wholly or partly inconsistent with their continued existence,
enjoyment or exercise.
Definition
(1) This section defines past act.
Acts before 1 July 1993 or 1 January 1994
(2) Subject to subsection (10), if:
(a) either:
(i) at any time before 1 July
1993 when native title existed in relation to particular land or waters, an act
consisting of the making, amendment or repeal of legislation took place; or
(ii) at any time before 1 January
1994 when native title existed in relation to particular land or waters, any
other act took place; and
(b) apart
from this Act, the act was invalid to any extent, but it would have been valid
to that extent if the native title did not exist;
the act is a past act in relation to the
land or waters.
Options exercised on or after 1 January 1994 etc.
(3) Subject to subsection (10), an act
that takes place on or after 1 January 1994 is a past act
if:
(a) it would be a past act under subsection (2)
if that subsection were not limited in its application to acts taking place
before a particular day; and
(b) it takes place:
(i) in exercise of a
legally enforceable right created by the making, amendment or repeal of
legislation before 1 July 1993 or by any other act done before 1 January
1994; or
(ii) in giving effect to,
or otherwise because of, an offer, commitment, arrangement or undertaking made
or given in good faith before 1 July 1993, and of which there is written
evidence created at or about the time the offer, commitment, arrangement or
undertaking was made; and
(c) the act is not the making,
amendment or repeal of legislation.
Extensions, renewals etc.
(4) Subject to subsections (6) and (10),
an act (the later act) that takes place on or after 1 January 1994 is a past act if:
(a) the later act would be a past act
under subsection (2) if that subsection were not limited in its
application to acts taking place before a particular day; and
(b) an act (the earlier act)
that is a past act because of any subsection of this section (including because
of another application of this subsection) took place before the later act; and
(c) the earlier act created interests
in a person and the later act creates interests in:
(i) the same person; or
(ii) another
person who has acquired the interests of the first person (by assignment,
succession or otherwise);
in relation to the whole or part
of the land or waters to which the earlier act relates; and
(d) the interests created by the later
act take effect before or immediately after the interests created by the earlier
act cease to have effect; and
(e) the interests created by the later
act permit activities of a similar kind to those permitted by the earlier act.
Examples of similar and dissimilar acts for the
purposes of paragraph (4)(e)
(5) The following are examples for the
purposes of paragraph (4)(e):
(a) the grant of a lease that permits
mining only for a particular mineral followed by the grant of a lease that
permits similar mining for another mineral is an example of a case where
interests created by an earlier act permit activities that are of a similar
kind to those permitted by a later act;
(b) the grant of a lease that permits
only grazing followed by the grant of a lease that permits mining is an example
of a case where interests created by an earlier act permit activities that are
not of a similar kind to those permitted by a later act.
Cases excluded from subsection (4)
(6) Subsection (4)
does not apply if:
(a) the earlier act was the creation
of a non‑proprietary interest in relation to land or waters and the later act
is the creation of a proprietary interest in land or waters; or
(b) the earlier act was the creation
of a proprietary interest in land or waters and the later act is the creation
of a larger proprietary interest in land or waters; or
(c) if the earlier act contains a
reservation or condition for the benefit of Aboriginal peoples or Torres Strait
Islanders—the later act does not contain the same reservation or condition; or
(d) the earlier act or the later act
is the making, amendment or repeal of legislation.
Example of earlier and later acts for the purposes of paragraph (6)(a)
(7) For the purposes of paragraph (6)(a),
the issue of a licence followed by the grant of a lease is an example of an
earlier act that is the creation of a non‑proprietary interest in relation to
land and a later act that is the creation of a proprietary interest in land.
Example of earlier and later acts for the purposes of paragraph (6)(b)
(8) For the purposes of paragraph (6)(b),
the grant of a lease followed by the grant of a freehold estate is an example
of an earlier act that is the creation of a proprietary interest in land and a
later act that is the creation of a larger proprietary interest in land.
Other extensions, and developments, of earlier acts
(9) Subject to subsection (10), an act
(the later act) that takes place on or after 1 January 1994 is a past act if:
(a) the later act would be a past act
under subsection (2) if that subsection were not limited in its
application to acts taking place before a particular day; and
(b) an act (the earlier act)
that is a past act because of any subsection of this section took place before
the later act; and
(c) the earlier act contained or
conferred a reservation, condition, permission or authority under which the
whole or part of the land or waters to which the earlier act related was to be
used at a later time for a particular purpose (for example, a reservation for
forestry purposes); and
(d) the later act is done in good
faith under or in accordance with the reservation, condition, permission or
authority (for example, the issue in good faith of a licence to take timber
under a reservation for forestry purposes); and
(e) the later act is not the making,
amendment or repeal of legislation.
Excluded acts
(10) An act is not a past act if
it is:
(a) the Queensland Coast Islands Declaratory Act 1985 of Queensland; or
(b) any other act declared by the
regulations to be an excluded act for the purposes of this paragraph.
Section defines expression
(1) This section defines the expression category
A past act.
Grant of certain freehold estates
(2) A past act consisting of the grant of a
freehold estate is a category A past act if:
(a) either:
(i) the grant was made
before 1 January 1994 and the estate existed on 1 January 1994; or
(ii) the grant was made on
or after 1 January 1994 and it is a past act because subsection 228(3)
(which deals with such things as the exercise of options) or 228(9) (which
deals with other extensions etc. of earlier acts) applies; and
(b) the grant is not:
(i) a grant by the Crown
in any capacity to the Crown, or to a statutory authority of the Crown, in any
capacity; or
(ii) a grant made by or
under legislation that grants freehold estates only to or for the benefit of
Aboriginal peoples or Torres Strait Islanders; or
(iii) a grant of a
prescribed kind to or for the benefit of Aboriginal peoples or Torres Strait
Islanders.
Grant of certain leases
(3) A past act consisting of the grant of:
(a) a commercial lease, an
agricultural lease, a pastoral lease or a residential lease; or
(b) 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;
is a category A past act if:
(c) either:
(i) the grant was made
before 1 January 1994 and the lease was in force on 1 January 1994; or
(ii) the grant was made on
or after 1 January 1994 and it is a past act because subsection 228(3) or
(9) applies; and
(d) the grant is not:
(i) a grant by the Crown
in any capacity to the Crown, or to a statutory authority of the Crown, in any
capacity; or
(ii) a grant made by or
under legislation that grants leases only to or for the benefit of Aboriginal
peoples or Torres Strait Islanders; or
(iii) a grant of a
prescribed kind to or for the benefit of Aboriginal peoples or Torres Strait
Islanders; or
(iv) a grant over land or
waters that, on 1 January 1994, are Aboriginal/Torres Strait Islander land
or waters.
Construction of public works
(4) A past act consisting of the construction
or establishment of any public work is a category A past act if:
(a) the work commenced to be
constructed or established before 1 January 1994 and the construction or establishment had not been completed by that day; or
(b) the work was constructed or
established before 1 January 1994 and still existed on that day; or
(c) the work was constructed or
established on or after 1 January 1994 and the construction or
establishment is a past act because subsection 228(9) applies.
A category B past act is a
past act consisting of the grant of a lease where:
(a) the grant is not a category A past
act; and
(b) the lease is not a mining lease;
and
(c) either:
(i) the grant was made
before 1 January 1994 and the lease was in force on 1 January 1994; or
(ii) the grant was made on
or after 1 January 1994 and it is a past act because subsection 228(3)
(which deals with such things as the exercise of options) or (9) (which deals
with other extensions etc. of earlier acts) applies; and
(d) the grant is not:
(i) a grant by the Crown
in any capacity to the Crown, or to a statutory authority of the Crown, in any
capacity; or
(ii) a grant made by or
under legislation that grants leases only to or for the benefit of Aboriginal
peoples or Torres Strait Islanders; or
(iii) a grant of a
prescribed kind to or for the benefit of Aboriginal peoples or Torres Strait
Islanders; or
(iv) a grant over land or
waters that, on 1 January 1994, are Aboriginal/Torres Strait Islander land
or waters.
A category C past act is a
past act consisting of the grant of a mining lease.
A category D past act is
any past act that is not a category A past act, a category B past act or a
category C past 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.
(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.
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.
A category C intermediate period
act is an intermediate period act consisting of the grant of a mining
lease.
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.
Definition
(1) Subject to this section, an act is a future
act in relation to land or waters if:
(a) either:
(i) it consists of the
making, amendment or repeal of legislation and takes place on or after 1 July 1993; or
(ii) it is any other act
that takes place on or after 1 January 1994; and
(b) it is not a past act; and
(c) apart from this Act, either:
(i) it validly affects
native title in relation to the land or waters to any extent; or
(ii) the following apply:
(A) it is to
any extent invalid; and
(B) it would
be valid to that extent if any native title in relation to the land or waters
did not exist; and
(C) if it
were valid to that extent, it would affect the native title.
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.
Acts creating or affecting Aboriginal/Torres Strait
Islander land or waters excluded
(3) Subsection (1) does not apply to any
of the following acts:
(a) an act that causes land or waters
to be held by or for the benefit of Aboriginal peoples or Torres Strait
Islanders under a law mentioned in the definition of Aboriginal/Torres
Strait Islander land or waters in section 253;
(b) any act affecting
Aboriginal/Torres Strait Islander land or waters.
A future act is an act attracting
the expedited procedure if:
(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
(b) the act is not likely to interfere
with areas or sites of particular significance, in accordance with their
traditions, to the persons who are the holders (disregarding any trust created
under Division 6 of Part 2) of the native title in relation to the
land or waters concerned; and
(c) the act is not likely to involve
major disturbance to any land or waters concerned or create rights whose
exercise is likely to involve major disturbance to any land or waters
concerned.
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.
Effect of references
(1) This section sets out the effect of a
reference to the non‑extinguishment principle applying to an act.
Native title not extinguished
(2) If the act affects any native title in
relation to the land or waters concerned, the native title is nevertheless not
extinguished, either wholly or partly.
Rights and interests wholly ineffective
(3) In such a case, if the act is wholly
inconsistent with the continued existence, enjoyment or exercise of the native
title rights and interests, the native title continues to exist in its entirety
but the rights and interests have no effect in relation to the act.
Rights and interests partly ineffective
(4) If the act is partly inconsistent with
the continued existence, enjoyment or exercise of the native title rights and
interests, the native title continues to exist in its entirety, but the rights
and interests have no effect in relation to the act to the extent of the
inconsistency.
Who the native title holders are
(5) Despite the fact that the native title
rights and interests have no effect (as mentioned in subsection (3)) or
have only limited effect (as mentioned in subsection (4)) in relation to
the act, the persons who are entitled in accordance with the traditional laws
and customs, as applying from time to time, to possess those rights and
interests continue to be the native title holders, subject to Division 6
of Part 2 (which deals with the holding of native title on trust).
Complete removal of act or its effects
(6) If the act or its effects are later
wholly removed or otherwise wholly cease to operate, the native title rights
and interests again have full effect.
Partial removal of act or its effects
(7) If the act or its effects are later
removed only to an extent, or otherwise cease to operate only to an extent, the
native title rights and interests again have effect to that extent.
Example of operation of section
(8) An example of the operation of this
section is its application to a category C past act consisting of the grant of
a mining lease that confers exclusive possession over an area of land or waters
in relation to which native title exists. In such a case the native title
rights and interests will continue to exist but will have no effect in relation
to the lease while it is in force. However, after the lease concerned expires
(or after any extension, renewal or re‑grant of it to which subsection 228(3),
(4) or (9) applies expires), the rights and interests again have full effect.
An act is attributable to
the Commonwealth, a State or a Territory if the act is done by:
(a) the Crown in right of the
Commonwealth, the State or the Territory; or
(b) the Parliament or Legislative
Assembly of the Commonwealth, the State or the Territory; or
(c) any person under a law of the
Commonwealth, the State or the Territory.
The similar compensable interest
test is satisfied in relation to a past act, an intermediate period act
or a future act if:
(a) the native title concerned relates
to an onshore place; and
(b) the compensation would, apart from
this Act, be payable under any law for the act on the assumption that the
native title holders instead held ordinary title to any land or waters
concerned and to the land adjoining, or surrounding, any waters concerned.
This Division contains definitions
relating to leases.
(1) The expression lease
includes:
(a) a lease enforceable in equity; or
(b) a contract that contains a
statement to the effect that it is a lease; or
(c) anything that, at or before the
time of its creation, is, for any purpose, by a law of the Commonwealth, a
State or a Territory, declared to be or described as a lease.
References to mining lease
(2) In the case only of references to a
mining lease, the expression lease also includes a licence
issued, or an authority given, by or under a law of the Commonwealth, a State
or a Territory.
(1) Subject to subsection (2), the
expression lessee includes any person who, by assignment,
succession, sub‑lease or otherwise, acquires, enjoys or is entitled to exercise
any of the interests under the lease of a lessee (including of a person who is
a lessee because of another application or applications of this section).
Lessee of certain mining leases
(2) In the case of a lease that is a mining
lease because of subsection 242(2) (which covers licences and authorities given
by or under laws), the expression lessee means:
(a) the person to whom the licence
mentioned in that subsection was issued, or the authority so mentioned was
given; or
(b) any person who, by assignment,
succession or otherwise, acquires or enjoys the licence or authority or is
entitled to exercise rights under the licence or the authority.
Definition
(1) The expression permit, in a
reference to a lease permitting a thing, means permit:
(a) expressly by the terms of the
lease; or
(b) by implication from the terms of
the lease; or
(c) otherwise (including expressly, or
by implication, from the operation of legislation).
Example of implication from legislation
(2) An example of a thing permitted by
implication from the operation of legislation is where the legislation states
that, if a lease is not renewed, compensation is payable for any building
constructed on the land subject to the lease. The construction of the building
is permitted by implication from the statement.
Definition
(1) A mining lease is a lease
(other than an agricultural lease, a pastoral lease or a residential lease)
that permits the lessee to use the land or waters covered by the lease solely
or primarily for mining.
Mining leases to which subsection (3) applies
(2) Subject to subsection (4), subsection (3)
applies to a mining lease if the lease was in force at the beginning of 1 January 1994 (the test time) and either or both of the following
paragraphs apply:
(a) the following conditions are
satisfied:
(i) a city, town or
private residences had been wholly or partly constructed at the test time on a
part of the land or waters covered by the lease;
(ii) the construction was
permitted by the lease;
(iii) in the case of any
private residences—they had been, or were being, constructed as fixtures and it
was reasonably likely at the test time that, if mining under the lease were to
cease at any later time, they would continue to be used as private residences;
(b) the following conditions are
satisfied:
(i) other buildings or
works had been wholly or partly constructed as fixtures at the test time, on a
part of the land or waters covered by the lease, for carrying on an activity in
connection with any city, town or private residences covered by paragraph (a);
(ii) the construction was
permitted by the lease;
(iii) it was reasonably
likely at the test time that, if mining under the lease were to cease at any
later time, the buildings or works would continue to be used to carry on the
same activity, or a similar activity, in connection with any city, town or
private residences mentioned in paragraph (a).
Dissection of mining lease
(3) If this subsection applies to a mining
lease, the lease is taken instead to consist of separate leases in respect of:
(a) the part of the land or waters in
respect of which paragraph (2)(a) or (b), or both paragraphs, are
satisfied; and
(b) the remainder of the land or
waters.
Exclusion of certain cities, towns etc.
(4) The Commonwealth Minister may, by
legislative instrument, determine that a specified city, town, private
residence, building or works is not to be taken into account for the purposes
of subsection (3).
Definition
(1) A commercial lease is a
lease (other than a mining lease) that permits the lessee to use the land or
waters covered by the lease solely or primarily for business or commercial
purposes. The defining of agricultural lease, pastoral
lease and residential lease in sections 247, 248 and
249 is not intended to limit the coverage of commercial lease.
Examples of a commercial lease
(2) For the purposes of subsection (1):
(a) construction on land of a building
to be used for business or commercial purposes, or of a hotel, motel or tourist
resort, is an example of use of the land for business or commercial purposes;
and
(b) use of a building on land for
business or commercial purposes, or operation of a hotel, motel or tourist
resort on land, is an example of use of the land for business or commercial
purposes.
(1) An agricultural lease is a
lease that:
(a) permits the lessee to use the land
or waters covered by the lease solely or primarily for agricultural purposes
(which includes the planting and growing in the land of trees, vines or
vegetables); or
(b) contains a statement to the effect
that it is solely or primarily an agricultural lease or that it is granted
solely or primarily for agricultural purposes.
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.
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.
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.
A pastoral lease is a
lease that:
(a) permits the lessee to use the land
or waters covered by the lease solely or primarily for:
(i) maintaining or
breeding sheep, cattle or other animals; or
(ii) any other pastoral
purpose; or
(b) contains a statement to the effect
that it is solely or primarily a pastoral lease or that it is granted solely or
primarily for pastoral purposes.
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.
A non‑exclusive
pastoral lease is a pastoral lease that is not an exclusive
pastoral lease.
Definition
(1) A residential lease is a
lease that permits the lessee to use the land or waters covered by the lease
solely or primarily for constructing or occupying a private residence.
Examples of residential lease
(2) For the
purposes of subsection (1):
(a) construction of a house or unit on
land for a person to live in is an example of use of the land for constructing
a private residence; and
(b) use of a house or unit on land
that is leased out to a person to live in is an example of use of the land for
occupying a private residence; and
(c) use of a hotel, motel, caravan or
tent on land is an example of something that is not use of the land for
occupying a private residence.
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.
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.
(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.
The use of the present tense in any
provision of this Act does not imply that the provision does not apply to
things happening before the commencement of the provision.
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.
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.
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,
by legislative instrument, so determines.
Other areas
(5) A particular area in any State or
Territory is a town or city if the Commonwealth Minister determines,
by legislative instrument, 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.
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.
Definition
(1) The expression notify the public in
the determined way means give notice in the way determined, by
legislative instrument, by the Commonwealth Minister for the purposes of the
provision in which the expression is used.
Examples of ways that may be determined
(2) Without limiting the ways that the
Commonwealth Minister may determine, he or she may determine that the notice
may be given:
(a) in newspapers (including
newspapers catering mainly or exclusively for the interests of Aboriginal
peoples or Torres Strait Islanders); or
(b) by radio broadcasts or television
transmissions.
Unless the contrary intention appears:
Aboriginal peoples means peoples of the
Aboriginal race of Australia.
Aboriginal/Torres Strait Islander land or waters
means land or waters held by or for the benefit of Aboriginal peoples or Torres
Strait Islanders under:
(a) any of the following laws of the
Commonwealth:
(i) the Aboriginal Land
Grant (Jervis Bay Territory) Act 1986;
(ii) the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987;
(iii) the Aboriginal Land Rights (Northern Territory) Act 1976; or
(b) any of the following laws of South Australia:
(i) the Aboriginal
Lands Trust Act 1966;
(ii) the Maralinga Tjarutja Land Rights Act 1984;
(iii) the Pitjantjatjara Land Rights Act 1981; or
(c) any other law, or part of a law,
prescribed for the purposes of the provision in which the expression is used.
agent prescribed body corporate, in relation
to native title rights and interests, means:
(a) a prescribed body corporate that
is determined under section 57 in relation to the native title; or
(b) a prescribed body corporate that,
under regulations made for the purposes of paragraph 56(4)(e), is to perform
the functions referred to in subsection 57(3) in relation to the native title;
or
(c) a prescribed body corporate that
replaces, under regulations made for the purposes of section 60:
(i) a prescribed body
corporate referred to in paragraph (a) or (b); or
(ii) a prescribed body
corporate that is an agent prescribed body corporate in relation to the native
title because of an earlier application of this paragraph.
applicant has a meaning affected by
subsection 61(2).
approved determination of native title has
the meaning given by subsections 13(3), (4) and (7).
arbitral body has the meaning given by
section 27.
assessor means an assessor appointed under Part VA of the Federal Court of Australia Act 1976.
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.
Chief Justice means the Chief Justice of the
Federal Court of Australia.
claimant application means a native title
determination application that a native title claim group has authorised to be
made, and, unless the contrary intention appears, includes such an application
that has been amended.
coastal sea has the meaning given by
subsection 15B(4) of the Acts Interpretation Act 1901.
common law holders has the meaning given by
section 56.
Commonwealth Minister means the Minister
applicable, in relation to the provision in which the expression is used, under
section 19A of the Acts Interpretation Act 1901.
CSC (short for Commonwealth Superannuation
Corporation) has the same meaning as in the Governance of Australian
Government Superannuation Schemes Act 2011.
explore includes:
(a) conduct a geological, geophysical
or geochemical survey; or
(b) take samples for the purpose of
analysis.
Federal Court means the Federal Court of
Australia.
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.
former judge means a person who has been a
Justice of the High Court or a judge of another federal court or of the Supreme
Court of a State or Territory.
Government party has the meaning given by
subsection 26(1).
grantee party has the meaning given by
paragraph 29(2)(c).
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.
indigenous land use agreement has the meaning
given by sections 24BA, 24CA and 24DA.
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, by legislative instrument, to be an
infrastructure facility for the purposes of this paragraph.
interest, in relation to land or waters,
means:
(a) a legal or equitable estate or
interest in the land or waters; or
(b) any other right (including a right
under an option and a right of redemption), charge, power or privilege over, or
in connection with:
(i) the land or waters; or
(ii) an estate or interest
in the land or waters; or
(c) a restriction on the use of the
land or waters, whether or not annexed to other land or waters.
Judge means a Judge of the Federal Court.
jurisdictional limits
means:
(a) in
relation to a State—the area within:
(i) the limits of the
State; or
(ii) the coastal waters of
the State (within the meaning of the Coastal Waters (State Powers) Act 1980);
or
(b) in relation to the Northern Territory—the area within:
(i) the limits of the
Territory; or
(ii) the coastal waters of
the Territory (within the meaning of the Coastal Waters (Northern Territory
Powers) Act 1980); or
(c) in relation to any other
Territory—the area within the limits of the Territory.
land includes
the airspace over, or subsoil under, land, but does not include waters.
Note 1: Because of the definition of waters,
not only rivers and lakes etc., but also such things as the bed or subsoil
under, and airspace over, rivers and lakes etc. will not be included in land.
Note 2: Because of the definition of waters,
the area between high water and low water will not be included in land.
major earthworks means earthworks (other than
in the course of mining) whose construction causes major disturbance to the
land, or to the bed or subsoil under waters.
mediator means:
(a) in relation to an application—the
person or body to which the application has been referred under subsection
86B(1) for mediation; or
(b) in relation to the whole or a part
of a proceeding—the person or body to which the whole or the part of the
proceeding has been referred under subsection 86B(5) for mediation.
member means a member of the Tribunal.
mine includes:
(a) explore or prospect for things
that may be mined (including things covered by that expression because of paragraphs (b)
and (c)); or
(b) extract petroleum or gas from land
or from the bed or subsoil under waters; or
(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.
National Native Title Register means the
register established and maintained under Part 8.
National Native Title Tribunal or NNTT
means the National Native Title Tribunal established under Part 6.
native title application inquiry has the
meaning given by section 138C.
native title claim
group means:
(a) in relation to a claim in an
application for a determination of native title made to the Federal Court—the
native title claim group mentioned in relation to the application in the table
in subsection 61(1); or
(b) in relation to a claim in an
application for an approved determination of native title made to a recognised
State/Territory body—the person or persons making the claim, or on whose behalf
the claim is made.
native title party has the meaning given by
paragraphs 29(2)(a) and (b) and section 30.
Native Title Registrar means the Native Title
Registrar appointed under Part 5.
negotiation party has the meaning given by
section 30A.
non‑claimant application means a native title
determination application that is not a claimant application.
non‑presidential member means a member who,
in accordance with the table in subsection 110(1), is of the non‑presidential
class.
offshore place means any land or waters to
which this Act extends, other than land or waters in an onshore place.
onshore place means land or waters within the
limits of a State or Territory to which this Act extends.
ordinary title, in relation to an onshore
place that is land, means:
(a) if the land is not in the
Australian Capital Territory or the Jervis Bay Territory—a freehold estate in
fee simple in the land other than such an estate granted by or under a law that
grants such estates only to or for the benefit of Aboriginal peoples or Torres
Strait Islanders; or
(b) if the land is in the Australian
Capital Territory or the Jervis Bay Territory—a lease over the land granted by
or on behalf of the Commonwealth under a law of the Commonwealth or of the
Territory, other than a lease granted by or under a law that grants such leases
only to or for the benefit of Aboriginal peoples or Torres Strait Islanders.
paragraph 51(xxxi) acquisition of property
means an acquisition of property within the meaning of paragraph 51(xxxi) of
the Constitution.
paragraph 51(xxxi) just terms means just
terms within the meaning of paragraph 51(xxxi) of the Constitution.
person conducting the mediation means the
person mentioned in subsection 94D(2) who conducts a conference under
section 94D in relation to the mediation concerned.
prescribed means prescribed by the
regulations.
President means the President of the
Tribunal.
presidential member means a member who, in
accordance with the table in section 110, is of the presidential class.
procedural right, in relation to an act,
means:
(a) a right to be notified of the act;
or
(b) a right to object to the act; or
(c) any other right that is available
as part of the procedures that are to be followed when it is proposed to do the
act.
public education facilities means education
facilities operated by or on behalf of the Crown, or a local government body or
other statutory authority of the Crown, in any of its capacities.
public health facilities means health
facilities operated by or on behalf of the Crown, or a local government body or
other statutory authority of the Crown, in any of its capacities.
public housing means housing operated by or
on behalf of the Crown, or a local government body or other statutory authority
of the Crown, in any of its capacities.
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.
recognised State/Territory body means a court,
office, tribunal or body in relation to which a determination under section 207A
is in force.
Register of Indigenous Land Use Agreements
means the register established and maintained under Part 8A.
Register of Native Title Claims means the
Register established and maintained in accordance with Part 7.
registered native title body corporate means:
(a) a prescribed body corporate whose
name and address are registered on the National Native Title Register under
paragraph 193(2)(e) or subsection 193(4); or
(b) a body corporate whose name and
address are registered on the National Native Title Register under paragraph
193(2)(f).
registered native title claimant, in relation
to land or waters, means a person or persons whose name or names appear in an
entry on the Register of Native Title Claims as the applicant in relation to a
claim to hold native title in relation to the land or waters.
Registrar means the Native Title Registrar.
representative Aboriginal/Torres Strait Islander body
means a body that is recognised under section 203AD.
representative body means a representative
Aboriginal/Torres Strait Islander body.
right to negotiate application has the
meaning given by paragraph 139(b).
special matter has the meaning given by
paragraph 139(1)(c).
State Minister, in relation to a State,
means:
(a) if there is no nomination under paragraph (b)—the
Premier of the State; or
(b) a Minister of the Crown of the
State nominated in writing given to the Commonwealth Minister by the Premier
for the purposes of this definition.
statutory authority, in relation to the Crown
in right of the Commonwealth, a State or a Territory, means any authority or
body (including a corporation sole) established by a law of the Commonwealth,
the State or Territory other than a general law allowing incorporation as a
company or body corporate.
subject to section 24FA protection has
the meaning given by Subdivision F of Division 3 of Part 2.
subsection 24DJ(1) objection application has
the meaning given by paragraph 139(d).
Territory Minister,
in relation to a Territory, means:
(a) if there is no nomination under paragraph (b)—the
Chief Minister of the Territory; or
(b) a Minister of the Territory
nominated in writing given to the Commonwealth Minister by the Chief Minister
for the purposes of this definition.
Torres Strait Islander means a descendant of
an indigenous inhabitant of the Torres Strait Islands.
Tribunal means the National Native Title
Tribunal.
valid includes having full force and effect.
waters includes:
(a) sea, a river, a lake, a tidal
inlet, a bay, an estuary, a harbour or subterranean waters; or
(b) the bed or subsoil under, or
airspace over, any waters (including waters mentioned in paragraph (a));
or
(c) the shore, or subsoil under or
airspace over the shore, between high water and low water.
http://www.comlaw.gov.au/Details/C2012C00780
ETHICAL DONATORS AND COMMUNITY MEMBERS
REQUIRED, TO FILL THIS SPACE WITH YOUR POLITICAL SLOGANS, ADVERTISING
OFFERS, WEBSITE DETAILS, CHARITY REQUESTS, LECTURE OPPORTUNITIES,
EDUCATIONAL WORKSHOPS, SPIRITUAL AND/OR HEALTH ENLIGHTENMENT COURSES.
http://www.comlaw.gov.au/Details/C2012C00780
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