Commonwealth: Native Title Act 1993 (Cth)

Native Title Act 1993 No. 110, 1993 Compilation No. 50 Compilation date: 12 June 2024 Includes amendments: Act No. 41, 2024 Registered: 19 June 2024 About this compilation This compilation This is a compilation of the Native Title Act 1993 that shows the text of the law as amended and in force on 12 June 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Objects 4 Overview of Act 5 Act binds Crown 6 Application to external Territories, coastal sea and other waters 7 Racial Discrimination Act 8 Effect of this Act on State or Territory laws 8A Application of the Criminal Code 9 Definitions located in Part 15 Part 2—Native Title Division 1—Recognition and protection of native title 10 Recognition and protection of native title 11 Extinguishment of native title 13 Approved determinations of native title Division 2—Validation of past acts Subdivision AA—Overview of Division 13A Overview of Division Subdivision A—Acts attributable to the Commonwealth 14 Validation of Commonwealth acts 15 Effect of validation on native title 16 Preservation of beneficial reservations and conditions 17 Entitlement to compensation 18 Where just terms invalidity Subdivision B—Acts attributable to a State or Territory 19 State/Territory acts may be validated 20 Entitlement to compensation Division 2A—Validation of intermediate period acts etc. Subdivision A—Overview of Division 21 Overview of Division Subdivision B—Acts attributable to the Commonwealth 22A Validation of Commonwealth acts 22B Effect of validation on native title 22C Preservation of beneficial reservations and conditions 22D Entitlement to compensation 22E Where "just terms" invalidity 22EA Requirement to notify: mining rights Subdivision C—Acts attributable to a State or Territory 22F State/Territory acts may be validated 22G Entitlement to compensation 22H Requirement to notify: mining rights Division 2AA—Validation of transfers under New South Wales land rights legislation 22I Overview of Division 22J Validation of transfers 22K Effect of validation on native title 22L Entitlement to compensation Division 2B—Confirmation of past extinguishment of native title by certain valid or validated acts 23A Overview of Division 23B Previous exclusive possession act 23C Confirmation of extinguishment of native title by previous exclusive possession acts of Commonwealth 23D Preservation of beneficial reservations and conditions 23DA Confirmation of validity of use of certain land held by Crown etc. 23E Confirmation of extinguishment of native title by previous exclusive possession acts of State or Territory 23F Previous non‑exclusive possession act 23G Confirmation of partial extinguishment of native title by previous non‑exclusive possession acts of Commonwealth 23H Preservation of beneficial reservations and conditions 23HA Notification 23I Confirmation of partial extinguishment of native title by previous non‑exclusive possession acts of State or Territory 23J Compensation 23JA Attribution of certain acts Division 3—Future acts etc. and native title Subdivision A—Preliminary 24AA Overview 24AB Order of application of provisions 24AC Regulations about notification Subdivision B—Indigenous land use agreements (body corporate agreements) 24BA Indigenous land use agreements (body corporate agreements) 24BB Coverage of body corporate agreements 24BC Body corporate agreements only where bodies corporate for whole area 24BD Parties to body corporate agreements 24BE Consideration and conditions 24BF Assistance to make body corporate agreements 24BG Application for registration of body corporate agreements 24BH Notice of body corporate agreements 24BI Registration of body corporate agreements Subdivision C—Indigenous land use agreements (area agreements) 24CA Indigenous land use agreements (area agreements) 24CB Coverage of area agreements 24CC Requirement that no bodies corporate for whole of area 24CD Parties to area agreements 24CE Consideration and conditions 24CF Assistance to make area agreements 24CG Application for registration of area agreements 24CH Notice of area agreements etc. 24CI Objections against registration 24CJ Decision about registration 24CK Registration of area agreements certified by representative bodies 24CL Registration of area agreements not certified by representative Aboriginal/Torres Strait Islander bodies Subdivision D—Indigenous land use agreements (alternative procedure agreements) 24DA Indigenous land use agreements (alternative procedure agreements) 24DB Coverage of alternative procedure agreements 24DC No extinguishment of native title 24DD Bodies corporate and representative bodies etc. 24DE Parties to alternative procedure agreements 24DF Consideration and conditions 24DG Assistance to make alternative procedure agreements 24DH Application for registration of alternative procedure agreements 24DI Notice of alternative procedure agreements 24DJ Objections against registration 24DK Decision about registration 24DL Registration of alternative procedure agreements 24DM Other registration procedures and conditions Subdivision E—Effect of registration of indigenous land use agreements 24EA Contractual effect of registered agreement 24EB Effect of registration on proposed acts covered by indigenous land use agreements 24EBA Effect of registration on previous acts covered by indigenous land use agreements 24EC Agreements unrelated to future acts 24ED Amended agreements Subdivision F—Future acts: if procedures indicate absence of native title 24FA Consequences if section 24FA protection applies 24FB When section 24FA protection arises—government applications 24FC When section 24FA protection arises—non‑government applications 24FD When section 24FA protection arises—entry on National Native Title Register 24FE Relevant native title claim Subdivision G—Future acts and primary production 24GA Primary production activity 24GB Acts permitting primary production on non‑exclusive agricultural and pastoral leases 24GC Primary production etc. activities on non‑exclusive agricultural or pastoral leases 24GD Acts permitting off‑farm activities that are directly connected to primary production activities 24GE Granting rights to third parties etc. on non‑exclusive agricultural or pastoral leases Subdivision H—Management of water and airspace 24HA Management or regulation of water and airspace Subdivision I—Renewals and extensions etc. 24IA Future acts to which this section applies 24IB Pre‑existing right‑based acts 24IC Future acts that are permissible lease etc. renewals 24ID Effect of Subdivision applying to an act Subdivision JA—Public housing etc. 24JAA Public housing etc. Subdivision J—Reservations, leases etc. 24JA Acts covered by this Subdivision 24JB Treatment of acts covered by section 24JA Subdivision K—Facilities for services to the public 24KA Facilities for services to the public Subdivision L—Low impact future acts 24LA Low impact future acts Subdivision M—Acts passing the freehold test 24MA Legislative acts 24MB Non‑legislative acts 24MC Only onshore places covered 24MD Treatment of acts that pass the freehold test Subdivision N—Acts affecting offshore places 24NA Acts affecting offshore places Subdivision O—Future acts invalid unless otherwise provided 24OA Future acts invalid unless otherwise provided Subdivision P—Right to negotiate 25 Overview of Subdivision 26 When Subdivision applies 26A Approved exploration etc. acts 26B Approved gold or tin mining acts 26C Excluded opal or gem mining 26D Excluded mining acts: earlier valid acts 27 Arbitral body 27A Relevant Minister 27B Conditions under agreements or determinations etc. 28 Act invalid if done before negotiation or objection/appeal etc. 29 Notification of parties affected 30 Other native title parties etc. 30A Negotiation parties 31 Normal negotiation procedure 32 Expedited procedure 33 Negotiations to include certain things 34 No agreement if determination 35 Application for arbitral body determination 36 Arbitral body determination to be made as soon as practicable 36A Ministerial determination if arbitral body determination delayed 36B Consultation prior to section 36A determination 36C Section 36A determinations 37 No arbitral body determination if agreement or Ministerial determination 38 Kinds of arbitral body determinations 39 Criteria for making arbitral body determinations 40 No re‑opening of issues previously decided 41 Effect of determination or agreement 41A Copies of agreements and determinations 41B Access to information about agreements 42 Overruling of determinations 42A Project acts—modified application of Subdivision 43 Modification of Subdivision if satisfactory alternative State or Territory provisions 43A Exception to right to negotiate: satisfactory State/Territory provisions 43B Mining rights covering both alternative provision area and other area 44 Additional operation of Subdivision 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 44B Rights of access for traditional activities 44C Suspension of native title rights 44D Certain other laws not affected 44E Federal Court jurisdiction 44F Request for mediation 44G Other mediation, arbitration and agreements not excluded by Subdivision Division 4—Other provisions relating to native title 44H Rights conferred by valid leases etc. 45 RDA compensation to be determined under this Act 46 Effect of grant of leases and licences validated by McArthur River legislation 47 Pastoral leases held by native title claimants 47A Reserves etc. covered by claimant applications 47B Vacant Crown land covered by claimant applications 47C National parks etc. covered by native title applications Division 5—Determination of compensation for acts affecting native title etc. 48 Compensation payable in accordance with Division 49 No multiple compensation for essentially same act 50 Bodies that may determine compensation 51 Criteria for determining compensation 51A Limit on compensation 52 Bank guarantee required under right to negotiate procedures 52A Payment held in trust under right to negotiate procedures 53 Just terms compensation 54 Commonwealth compensation payable from CRF Division 6—Native title functions of prescribed bodies corporate and holding of native title in trust 55 Determinations by Federal Court 56 Determination whether native title to be held in trust 57 Determination of prescribed body corporate etc. 58 Functions under regulations 59 Kinds of prescribed bodies corporate may be determined 59A Prescribed bodies corporate for subsequent determinations of native title 60 Replacement of agent prescribed bodies corporate 60AAA Assistance in relation to registered native title bodies corporate 60AA Body corporate for Meriam people Division 7—Financial matters 60AB Fees for services provided by registered native title bodies corporate in performing certain functions 60AC Opinion of the Registrar of Aboriginal and Torres Strait Islander Corporations Part 3—Applications Division 1AA—Overview of Part 60A Overview of Part Division 1—Applications to the Federal Court: native title and compensation 61 Native title and compensation applications 61A Restrictions on making of certain applications 62 Information etc. in relation to certain applications 62A Power of applicants where application authorised by group 62B General law duties 62C Acting where persons are jointly the applicant etc. 63 Reference of applications to Native Title Registrar 64 Amendment of applications 66 Notice of application 66A Notice of amended application 66B Replacing the applicant 66C Registrar's role in relation to certain applications relating to future acts 67 Overlapping native title determination applications 68 Only one determination of native title per area Division 1A—Other applications to the Federal Court 69 Applications that may be made 70 Federal Court Rules about applications etc. Division 2—Applications to the National Native Title Tribunal: right to negotiate 75 Right to negotiate applications 76 Material and fees to accompany applications 77 Action to be taken in relation to applications Division 2A—Applications to the Native Title Registrar: objections against registration of indigenous land use agreements 77A Material and fees to accompany applications 77B Action to be taken in relation to applications Division 3—Miscellaneous 78 Assistance in relation to proceedings 79 Requests for non‑monetary compensation Part 4—Determinations of the Federal Court Division 1—Overview of Part 79A Overview of Part Division 1A—General 80 Operation of Part 81 Jurisdiction of the Federal Court 82 Federal Court's way of operating 83 Assessor assisting the Federal Court 83A Federal Court may request searches to be conducted 84 Parties 84A Intervention by Commonwealth Minister 84B Parties may appoint an agent 84C Striking out applications for failure to comply with requirements of this Act 84D Proceedings affected by possible defect in authorisation 85 Representation before Federal Court 85A Costs 86 Evidence and findings in other proceedings Division 1B—Reference for mediation 86A Purpose of mediation 86B Referral of matters for mediation 86BA Mediator may appear before the Court 86C Cessation of mediation 86D Federal Court's powers 86E Federal Court may request reports from a mediator Division 1C—Agreements and unopposed applications 86F Agreement to settle application etc. 86G Unopposed applications 87 Power of Federal Court if parties reach agreement 87A Power of Federal Court to make determination for part of an area Division 2—Conferences etc. 88 Conferences 89 Right of appearance 90 Participation by telephone etc. 91 Conferences to be held in public except in special circumstances 92 Federal Court may prohibit disclosure of evidence 93 Powers of assessor to take evidence Division 3—Orders 94 Order that compensation is payable 94A Order containing determination of native title 94B Order relating to an application that has been referred for mediation 94C Order dismissing an application relating to a future act Division 4—Mediation 94D Mediation conferences 94E Parties at conferences 94F Other persons attending or participating in conferences 94G Producing documents 94H Referral of questions of fact or law 94J Referral of questions about whether a party should be dismissed 94K Conferences to be held in private 94L Person conducting the mediation may prohibit disclosure of information etc. 94M Person conducting the mediation etc. must not be required to give evidence or produce documents to a court 94N Report etc. to be given to Federal Court 94P Reports about breaches of the requirement to act in good faith 94Q Public reporting about breaches of the requirement to act in good faith 94R Protection of person conducting the mediation 94S Regulations about mediation Part 5—Native Title Registrar 95 Appointment of Registrar 96 President may give directions to Registrar 96A Powers of Registrar—ILUAs and future act negotiations 97 Powers of Registrar—applications 97A Searches for Federal Court etc. 98 Powers of Registrar—registers 98AA Powers of Registrar—records of section 31 agreements 98A Power of Registrar—other public records and information 99 Delegation by Registrar 100 Remuneration and allowances 101 Terms and conditions of appointment 102 Leave of absence 103 Resignation 104 Termination of appointment 105 Outside employment 106 Disclosure of interests by Registrar 106A Appointment of acting Registrar Part 6—National Native Title Tribunal Division 1—Establishment, purpose and way of operating 107 Establishment of the National Native Title Tribunal 108 Function of the Tribunal 109 Tribunal's way of operating Division 2—Membership of the National Native Title Tribunal 110 Membership of the Tribunal 111 Appointment of members of Tribunal 112 Appointment of a Judge or an assessor as a member not to affect tenure etc. 113 Delegation to members 114 Remuneration and allowances 115 Terms and conditions of appointment 115A Acting appointments 116 Oath or affirmation of office 117 Leave of absence 118 Resignation 119 Termination of appointment—members other than Judges or assessors 120 Suspension of members other than a Judge—misbehaviour or incapacity 121 Outside employment 122 Disclosure of interests Division 3—Organisation of the Tribunal 123 Arrangement of business 124 Constitution of Tribunal for exercise of powers 125 Reconstitution of the Tribunal 126 Member presiding 127 Places of sitting Division 4—Management of the Tribunal Subdivision A—Management responsibilities etc. of President of Tribunal and Federal Court Chief Executive Officer 128 Management of administrative affairs of Tribunal 129 Federal Court Chief Executive Officer 129A Delegation by Federal Court Chief Executive Officer Subdivision B—Other officers, staff and consultants 130 Deputy Registrars and staff etc. 131A President may arrange for consultants to be engaged 131B Disclosure of interests Subdivision C—Miscellaneous administrative matters 133 Annual report 136 Proceedings arising out of administrative affairs of Tribunal Division 4AA—Review on whether there are native title rights and interests 136GC Review on whether there are native title rights and interests 136GD Member conducting a review may prohibit disclosure of information 136GE Reports Division 4B—How assistance, mediation or review is to be provided 136H Regulations about assistance, mediation or review Division 5—Inquiries and determinations by the Tribunal Subdivision A—Special inquiries 137 Special inquiries 138 Notice Subdivision AA—Native title application inquiries 138A Application 138B Native title application inquiries 138C Tribunal to hold inquiry 138D Notice to be given to certain persons before inquiry is held 138E Relationship to mediation and reviews on whether there are native title rights and interests 138F Cessation of inquiry 138G Inquiries may cover more than one proceeding Subdivision B—Inquiries—General 139 Inquiries 140 Inquiries may cover more than one matter 141 Parties 142 Opportunity to make submissions concerning evidence 143 Representation before Tribunal 144 Manner in which questions to be decided 145 Reference of questions of law to the Federal Court 146 Evidence and findings in other proceedings 147 Power of Tribunal where a proceeding is frivolous or vexatious 148 Power of Tribunal where no jurisdiction, failure to proceed etc. 149 Power of Tribunal where applicant requests dismissal 149A Power of Tribunal to reinstate application Subdivision C—Conferences and hearings 150 Conferences 151 Hearings 152 Right of appearance 153 Participation by telephone etc. 154 Hearings to be held in public except in special circumstances 154A Exception—hearings to be held in private if held during course of a native title application inquiry 155 Tribunal may prohibit disclosure of evidence 156 Powers of Tribunal to take evidence 157 Tribunal may authorise another person to take evidence 158 Interpreters 159 Retention and copying of documents Subdivision D—Determinations and reports 162 Determination of the Tribunal—right to negotiate applications 163 Reports after special inquiries 163AA Reports after inquiries into subsection 24DJ(1) objection applications 163A Reports after native title application inquiries 164 Determinations and reports to be in writing Subdivision F—Appeals 169 Appeals to Federal Court from decisions and determinations of the Tribunal 170 Operation and implementation of a decision or determination that is subject to appeal Division 6—Offences 171 Failure of witness to attend 172 Refusal to be sworn or to answer questions etc. 173 Giving of false or misleading evidence 174 Refusal to produce document 176 Contravention of direction prohibiting disclosure of evidence 177 Contempt of Tribunal Division 7—Miscellaneous 178 Sending of documents to the Federal Court 179 Return of documents etc. at completion of proceeding 180 Protection of members and persons giving evidence 181 Confidential information not to be disclosed 182 Fees for persons giving evidence Part 7—Register of Native Title Claims 184 Claims to native title 185 Register of Native Title Claims 186 Contents of the Register 187 Inspection of the Register 188 Parts of the Register may be kept confidential 189 Senior Registrar of the High Court to notify Registrar 189A Federal Court Chief Executive Officer to notify Native Title Registrar 190 Keeping the Register 190A Registrar to consider claims 190B Registration: conditions about merits of the claim 190C Registration: conditions about procedural and other matters 190D If the claim cannot be registered—notice of decision 190E If the claim cannot be registered—reconsideration by the NNTT 190F If the claim cannot be registered—review by Federal Court 191 Delegation by Registrar to recognised State/Territory body Part 8—National Native Title Register 192 National Native Title Register 193 Contents of the Register 194 Inspection of the Register 195 Parts of the Register may be kept confidential 197 Keeping the Register 198 Delegation by Registrar to recognised State/Territory body 199 Registrar to notify land titles office Part 8A—Register of Indigenous Land Use Agreements 199A Register of Indigenous Land Use Agreements 199B Contents of the Register etc. 199C Removal of details of agreement from Register 199D Inspection of the Register 199E Parts of the Register to be kept confidential 199F Delegation by Registrar Part 9—Financial assistance to States and Territories 200 Financial assistance to States and Territories Part 11—Representative Aboriginal/Torres Strait Islander bodies Division 1—Preliminary 201A Definitions 201B Eligible bodies Division 2—Recognition of representative Aboriginal/Torres Strait Islander bodies 203A Inviting applications for recognition 203AA Revocation of invitations 203AAA Eligible body must notify the Commonwealth Minister if it decides not to apply for recognition etc. 203AB Application for recognition 203AC Dealing with applications 203AD Recognition of representative bodies 203AE Commonwealth Minister may vary an area for which a body is the representative body 203AF Notification requirements for the variation of an area on the Commonwealth Minister's own initiative 203AG Notice of decision on variation 203AH Withdrawal of recognition 203AI Matters to which Commonwealth Minister must have regard Division 3—Functions and powers of representative bodies 203B Functions of representative bodies 203BA How functions of representative bodies are to be performed 203BB Facilitation and assistance functions 203BC How facilitation and assistance functions are to be performed 203BD Matters that overlap different representative body areas 203BE Certification functions 203BF Dispute resolution functions 203BG Notification functions 203BH Agreement making function 203BI Internal review functions 203BJ Other functions 203BK Powers of representative bodies Division 4—Finance 203C Funding of representative bodies 203CA Conditions of funding 203CB Banking and investment Division 5—Accountability 203DA Accounting records 203DB Payments to be properly made etc. 203DF Inspection and audit, or investigation, of a representative body 203DG Access to information 203DH Effect of withdrawal of recognition Division 6—Conduct of directors and other executive officers 203E Application of Division 203EA Representative bodies that are not corporations 203EB Representative bodies registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 Division 7—Miscellaneous 203F Secretary to inform Minister of certain matters 203FB Review of assistance decisions 203FBA External review 203FBB Review by Secretary of the Department 203FC Transfer of documents and records 203FCA Representative body etc. to comply with wishes of traditional custodians 203FD Liability of executive officers etc. 203FE Provision of funding by the Commonwealth 203FEA Application of this Act to persons and bodies funded under subsection 203FE(1) 203FEB Application of this Act to persons and bodies funded under subsection 203FE(2) 203FEC Certain provisions do not apply to persons and bodies funded under subsection 203FE(1) or (2) 203FED Liability 203FF Financial and accountability requirements imposed by other legislation 203FG False statements etc. 203FH Conduct by directors, employees and agents 203FI Delegation Part 12A—State/Territory bodies 207A Recognised State/Territory body 207B Equivalent State/Territory bodies Part 13—Miscellaneous 208 Act not to apply so as to exceed Commonwealth power 209 Reports by Aboriginal and Torres Strait Islander Social Justice Commissioner 209A Evaluation of amendments made by the Native Title Legislation Amendment Act 2021 210 Operation of beneficial land rights laws not affected 211 Preservation of certain native title rights and interests 212 Confirmation of ownership of natural resources, access to beaches etc. 213 Provisions relating to Federal Court jurisdiction 214 Application of amended rules of evidence in proceedings before the Federal Court 215 Regulations Part 15—Definitions Division 1—List of definitions 222 List of definitions Division 2—Key concepts: Native title and acts of various kinds etc. 223 Native title 224 Native title holder 225 Determination of native title 226 Act 227 Act affecting native title 228 Past act 229 Category A past act 230 Category B past act 231 Category C past act 232 Category D past act 232A Intermediate period act 232B Category A intermediate period act 232C Category B intermediate period act 232D Category C intermediate period act 232E Category D intermediate period act 233 Future act 237 Act attracting the expedited procedure 237A Extinguish 238 Non‑extinguishment principle 239 Act attributable to the Commonwealth, a State or a Territory 240 Similar compensable interest test Division 3—Leases 241 Coverage of Division 242 Lease 243 Lessee 244 Permit 245 Mining lease 246 Commercial lease 247 Agricultural lease 247A Exclusive agricultural lease 247B Non‑exclusive agricultural lease 248 Pastoral lease 248A Exclusive pastoral lease 248B Non‑exclusive pastoral lease 249 Residential lease 249A Community purposes lease 249B Perpetual lease 249C Scheduled interest Division 4—Sundry definitions etc. 250 Application to things happening before commencement 251A Authorising the making of indigenous land use agreements 251B Authorising the making of applications 251BA Conditions on authority 251C Towns and cities 251D Land or waters on which a public work is constructed, established or situated 252 Notify the public in the determined way 253 Other definitions Schedule 1—Scheduled interests Part 1—New South Wales 1 Crown Lands Occupation Act 1861 2 Crown Lands Act 1884 3 Western Lands Act 1901, Crown Lands Consolidation Act 1913 and other land Acts 4 Returned Soldiers Settlement Act 1916 5 Closer Settlement Amendment (Conversion) Act 1943 6 Crown Lands Act 1989 7 National Parks legislation 8 Various Acts Part 2—Victoria 9 Land Acts etc. 10 Water Acts etc. 11 Forests Acts 12 National Parks Act 1975 13 Alpine Resorts Act 1983 14 Gardens Acts 15 Settlement Acts etc. 16 Crown Land (Reserves) Act 1978 17 Melbourne and Metropolitan Board of Works Acts 18 Port Acts etc. 19 Railway and Transport Acts 20 Various Acts Part 3—Queensland 21 Leases under various Land Acts etc. 22 Freeholding leases 23 Homestead interests 24 Settlement farm leases 25 Agricultural farms 26 Perpetual lease selections 27 Perpetual town leases 28 Perpetual suburban leases 29 Perpetual country leases 30 Prickly pear‑related interests 31 Leases under agreements given the force of law 32 Various interests Part 4—Western Australia 33 Legislation before 1898 34 Land Act 1898 and Land Act 1933 35 Other legislation after 1898 36 Leases under certain mining‑related and other Acts Part 5—South Australia 37 Perpetual leases and leases for a term of years 38 Miscellaneous leases 39 Other interests Part 6—Tasmania 40 Crown Lands Acts 41 Closer Settlement Act 1929 Part 7—Northern Territory 42 Town leases etc. 43 Agricultural leases etc. 44 Leases for special purposes etc. 45 Miscellaneous leases 46 Other leases Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act about native title in relation to land or waters, and for related purposes Preamble This preamble sets out considerations taken into account by the Parliament of Australia in enacting the law that follows. The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement. They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands. As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society. The people of Australia voted overwhelmingly to amend the Constitution so that the Parliament of Australia would be able to make special laws for peoples of the aboriginal race. The Australian Government has acted to protect the rights of all of its citizens, and in particular its indigenous peoples, by recognising international standards for the protection of universal human rights and fundamental freedoms through: (a) the ratification of the International Convention on the Elimination of All Forms of Racial Discrimination and other standard‑setting instruments such as the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights; and (b) the acceptance of the Universal Declaration of Human Rights; and (c) the enactment of legislation such as the Racial Discrimination Act 1975 and the Australian Human Rights Commission Act 1986. The High Court has: (a) rejected the doctrine that Australia was terra nullius (land belonging to no‑one) at the time of European settlement; and (b) held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands; and (c) held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates. The people of Australia intend: (a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and (b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire. The needs of the broader Australian community require certainty and the enforceability of acts potentially made invalid because of the existence of native title. It is important to provide for the validation of those acts. Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect. It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done. A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character. Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to: (a) claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and (b) proposals for the use of such land for economic purposes. It is important that appropriate bodies be recognised and funded to represent Aboriginal peoples and Torres Strait Islanders and to assist them to pursue their claims to native title or compensation. It is also important to recognise that many Aboriginal peoples and Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests and that a special fund needs to be established to assist them to acquire land. The Parliament of Australia intends that the following law will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia. The law, together with initiatives announced at the time of its introduction and others agreed on by the Parliament from time to time, is intended, for the purposes of paragraph 4 of Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and the Racial Discrimination Act 1975, to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders, and is intended to further advance the process of reconciliation among all Australians. The Parliament of Australia therefore enacts: Part 1—Preliminary 1 Short title This Act may be cited as the Native Title Act 1993. 2 Commencement Commencement of provisions on Royal Assent (1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent. Commencement of provisions by Proclamation (2) Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation. Forced commencement of provisions (3) If a provision referred to in subsection (2) does not commence under that subsection within the period of 9 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period. 3 Objects Main objects The main objects of this Act are: (a) to provide for the recognition and protection of native title; and (b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and (c) to establish a mechanism for determining claims to native title; and (d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title. 4 Overview of Act Recognition and protection of native title (1) This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act. Topics covered (2) Essentially, this Act covers the following topics: (a) acts affecting native title (see subsections (3) to (6)); (b) determining whether native title exists and compensation for acts affecting native title (see subsection (7)). Kinds of acts affecting native title (3) There are basically 2 kinds of acts affecting native title: (a) past acts (mainly acts done before this Act's commencement on 1 January 1994 that were invalid because of native title); and (b) future acts (mainly acts done after this Act's commencement that either validly affect native title or are invalid because of native title). Consequences of past acts and future acts (4) For past acts and future acts, this Act deals with the following matters: (a) their validity; (b) their effect on native title; (c) compensation for the acts. Intermediate period acts (5) However, for certain acts (called intermediate period acts) done mainly before the judgment of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1, that would be invalid because they fail to pass any of the future act tests in Division 3 of Part 2, or for any other reason because of native title, this Act provides for similar consequences to past acts. Confirmation of extinguishment of native title (6) This Act also confirms that many acts done before the High Court's judgment, that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23B), the extinguishment is complete; if the acts are previous non‑exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency. Role of Federal Court and National Native Title Tribunal (7) This Act also: (a) provides for the Federal Court to make determinations of native title and compensation; and (aa) provides for the Federal Court to refer native title and compensation applications for mediation; and (ab) provides for the Federal Court to make orders to give effect to terms of agreements reached by parties to proceedings including terms that involve matters other than native title; and (b) establishes a National Native Title Tribunal with power to: (i) make determinations about whether certain future acts can be done and whether certain agreements concerning native title are to be covered by the Act; and (ii) provide assistance or undertake mediation in other matters relating to native title; and (c) deals with other matters such as the keeping of registers and the role of representative Aboriginal/Torres Strait Islander bodies. 5 Act binds Crown This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. However, nothing in this Act renders the Crown liable to be prosecuted for an offence. 6 Application to external Territories, coastal sea and other waters This Act extends to each external Territory, to the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973. 7 Racial Discrimination Act (1) This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975. (2) Subsection (1) means only that: (a) the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and (b) to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity. (3) Subsections (1) and (2) do not affect the validation of past acts or intermediate period acts in accordance with this Act. 8 Effect of this Act on State or Territory laws This Act is not intended to affect the operation of any law of a State or a Territory that is capable of operating concurrently with this Act. 8A Application of the Criminal Code (1) Subject to subsection (2), Chapter 2 of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. (2) Part 2.5 of the Criminal Code does not apply to an offence against Part 11 of this Act. 9 Definitions located in Part 15 Part 15 contains definitions of certain expressions that are used in this Act. Part 2—Native Title Division 1—Recognition and protection of native title 10 Recognition and protection of native title Native title is recognised, and protected, in accordance with this Act. 11 Extinguishment of native title (1) Native title is not able to be extinguished contrary to this Act. Effect of subsection (1) (2) An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title: (a) in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc. and native title) of Part 2; or (b) by validating past acts, or intermediate period acts, in relation to the native title. 13 Approved determinations of native title Applications to Federal Court (1) An application may be made to the Federal Court under Part 3: (a) for a determination of native title in relation to an area for which there is no approved determination of native title; or (b) to revoke or vary an approved determination of native title on the grounds set out in subsection (5). Native title determinations by Federal Court when determining compensation entitlements (2) If: (a) the Federal Court is making a determination of compensation in accordance with Division 5; and (b) an approved determination of native title has not previously been made in relation to the whole or part of the area concerned; the Federal Court must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made. Note: The compensation application must contain the information that would be required for a native title determination application for the area: see section 62. Approved determinations of native title (3) Subject to subsection (4), each of the following is an approved determination of native title: (a) a determination of native title made on an application under paragraph (1)(a) or in accordance with subsection (2); (b) an order, judgment or other decision of a recognised State/Territory body that involves a determination of native title in relation to an area within the jurisdictional limits of the State or Territory. Variation or revocation of determinations (4) If an approved determination of native title is varied or revoked on the grounds set out in subsection (5) by: (a) the Federal Court, in determining an application under Part 3; or (b) a recognised State/Territory body in an order, judgment or other decision; then: (c) in the case of a variation—the determination as varied becomes an approved determination of native title in place of the original; and (d) in the case of a revocation—the determination is no longer an approved determination of native title. Grounds for variation or revocation (5) For the purposes of subsection (4), the grounds for variation or revocation of an approved determination of native title are: (a) that events have taken place since the determination was made that have caused the determination no longer to be correct; or (b) that the interests of justice require the variation or revocation of the determination; or (c) that the determination relates to an area in relation to which the agreement required by paragraph 47C(1)(b) has been given. Note: Section 47C provides for extinguishment of native title rights and interests in relation to certain areas such as national parks etc. to be disregarded. Review or appeal (6) If: (a) a determination of the Federal Court; or (b) an order, judgment or other decision of a recognised State/Territory body; is subject to any review or appeal, this section refers to the determination, order, judgment or decision as affected by the review or appeal, when finally determined. High Court determinations (7) A determination of native title by the High Court is an approved determination of native title. Division 2—Validation of past acts Subdivision AA—Overview of Division 13A Overview of Division (1) In summary, this Division validates, or allows States and Territories to validate, certain acts that: (a) took place before 1 January 1994; and (b) would otherwise be invalid because of native title. This Division also covers certain acts done after that day consisting of an extension or renewal etc. of an act done before that day. (2) The acts validated are called past acts; they are defined in section 228. (3) This Division also sets out the effect of such validation on native title. The effect varies depending on the nature of the act. For this purpose, different categories of past act are defined by sections 229 to 232. Subdivision A—Acts attributable to the Commonwealth 14 Validation of Commonwealth acts (1) If a past act is an act attributable to the Commonwealth, the act is valid, and is taken always to have been valid. Effect of validation of law (2) To avoid any doubt, if a past act validated by subsection (1) is the making, amendment or repeal of legislation, subsection (1) does not validate: (a) the grant or issue of any lease, licence, permit or authority; or (b) the creation of any interest in relation to land or waters; under any legislation concerned, unless the grant, issue or creation is itself a past act attributable to the Commonwealth. 15 Effect of validation on native title (1) If a past act is an act attributable to the Commonwealth: (a) if it is a category A past act other than one to which subsection 229(4) (which deals with public works) applies—the act extinguishes the native title concerned; and (b) if it is a category A past act to which subsection 229(4) applies: (i) in any case—the act extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and (ii) if paragraph 229(4)(a) applies—the extinguishment is taken to have happened on 1 January 1994; and (c) if it is a category B past act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned—the act extinguishes the native title to the extent of the inconsistency; and (d) if it is a category C past act or a category D past act—the non‑extinguishment principle applies to the act. Note: This subsection does not apply to the act if section 23C or 23G applies to the act. (2) The extinguishment effected by this section does not by itself confer any right to eject or remove any Aboriginal persons who reside on or who exercise access over land or waters covered by a pastoral lease the grant, re‑grant or extension of which is validated by section 14. 16 Preservation of beneficial reservations and conditions If: (a) the act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or (b) the doing of the act would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage); nothing in section 15 affects that reservation or condition or those rights or interests. 17 Entitlement to compensation Extinguishment case (1) If the act attributable to the Commonwealth is a category A past act or a category B past act, the native title holders are entitled to compensation for the act. Non‑extinguishment case (2) If it is any other past act, the native title holders are entitled to compensation for the act if: (a) the native title concerned is to some extent in relation to an onshore place and the act could not have been validly done on the assumption that the native title holders instead held ordinary title to: (i) any land concerned; and (ii) the land adjoining, or surrounding, any waters concerned; or (b) the native title concerned is to some extent in relation to an offshore place; or (c) the native title concerned relates either to land or to waters and the similar compensable interest test is satisfied in relation to the act. Compensation for partial effect of act (3) If the entitlement arises only because one, but not both, of paragraphs (2)(a) and (b) are satisfied, it is only an entitlement for the effect of the act on the native title in relation to the onshore place, or the offshore place, mentioned in the relevant paragraph. Who pays compensation (4) The compensation is payable by the Commonwealth. 18 Where just terms invalidity Section applies if acquisition of property other than on just terms (1) This section applies if the invalidity (disregarding section 14) of a past act attributable to the Commonwealth results from a paragraph 51(xxxi) acquisition of property by the Commonwealth from any person having been made otherwise than on paragraph 51(xxxi) just terms. Entitlement to compensation (2) The person is entitled to compensation from the Commonwealth for the acquisition in accordance with Division 5 and, if that compensation does not ensure that the acquisition is made on paragraph 51(xxxi) just terms, to such additional compensation from the Commonwealth as is necessary to ensure that it is. Subdivision B—Acts attributable to a State or Territory 19 State/Territory acts may be validated (1) If a law of a State or Territory contains provisions to the same effect as sections 15 and 16, the law of the State or Territory may provide that past acts attributable to the State or Territory are valid, and are taken always to have been valid. Effect of validation of law (2) To avoid any doubt, if a past act validated by subsection (1) is the making, amendment or repeal of legislation, subsection (1) does not validate: (a) the grant or issue of any lease, licence, permit or authority; or (b) the creation of any interest in relation to land or waters; under any legislation concerned, unless the grant, issue or creation is itself a past act attributable to the State or Territory. 20 Entitlement to compensation Compensation where validation (1) If a law of a State or Territory validates a past act attributable to the State or Territory in accordance with section 19, the native title holders are entitled to compensation if they would be so entitled under subsection 17(1) or (2) on the assumption that section 17 applied to acts attributable to the State or Territory. Compensation where no validation (2) Native title holders are entitled to compensation for the past act attributable to a State or Territory that, at the time when the claim for compensation is determined, has not been validated by the State or Territory in accordance with section 19. Recovery of compensation (3) The native title holders may recover the compensation from the State or Territory. States or Territories may create compensation entitlement (4) This section does not prevent a law of a State or Territory from creating an entitlement to compensation for a past act or for the validation of a past act. Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth, State and Territory laws. Division 2A—Validation of intermediate period acts etc. Subdivision A—Overview of Division 21 Overview of Division (1) In summary, this Division validates, or allows States and Territories to validate, certain acts that: (a) took place on or after 1 January 1994 but on or before 23 December 1996; and (b) would otherwise be invalid to any extent because they fail to pass any of the future act tests in Division 3 of Part 2 or for any other reason because of native title. (2) The acts are called intermediate period acts; they are defined in section 232A. (3) For this validation to apply, before the act was done, there must have been: (a) a grant of a freehold estate or a lease (other than a mining lease); or (b) a public work; over any of the land or waters concerned. (4) The Division also sets out the effect of such validation on native title. The effect varies depending on the nature of the act. For this purpose, different categories of intermediate period act are defined by sections 232B to 232E. (5) The structure of the Division is very similar to that of Division 2 (which deals with validation of past acts). Subdivision B—Acts attributable to the Commonwealth 22A Validation of Commonwealth acts If an intermediate period act is an act attributable to the Commonwealth, the act is valid, and is taken always to have been valid. 22B Effect of validation on native title Subject to subsection 24EBA(6), if an intermediate period act is an act attributable to the Commonwealth: (a) if it is a category A intermediate period act to which subsection 232B(2), (3) or (4) (which deal with things such as the grant or vesting of freehold estates and certain leases) applies—the act extinguishes all native title in relation to the land or waters concerned; and (b) if it is a category A intermediate period act to which subsection 232B(7) (which deals with public works) applies: (i) the act extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and (ii) the extinguishment is taken to have happened when the construction or establishment began; and (c) if it is a category B intermediate period act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned—the act extinguishes the native title to the extent of the inconsistency; and (d) if it is a category C intermediate period act or a category D intermediate period act—the non‑extinguishment principle applies to the act. Note: This section does not apply to the act if section 23C or 23G applies to the act. 22C Preservation of beneficial reservations and conditions If: (a) an intermediate period act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or (b) the doing of an intermediate period act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage); nothing in section 22B affects that reservation or condition or those rights or interests. 22D Entitlement to compensation (1) If an intermediate period act is an act attributable to the Commonwealth, the native title holders are entitled to compensation for the act. Who pays compensation (2) The compensation is payable by the Commonwealth. 22E Where "just terms" invalidity Section applies if acquisition of property other than on just terms (1) This section applies if the invalidity (disregarding section 22A) of an intermediate period act attributable to the Commonwealth results from a paragraph 51(xxxi) acquisition of property by the Commonwealth from any person having been made otherwise than on paragraph 51(xxxi) just terms. Entitlement to compensation (2) The person is entitled to compensation from the Commonwealth for the acquisition in accordance with Division 5 and, if that compensation does not ensure that the acquisition is made on paragraph 51(xxxi) just terms, to such additional compensation from the Commonwealth as is necessary to ensure that it is. 22EA Requirement to notify: mining rights (1) If: (a) an act that is attributable to the Commonwealth consists of: (i) the creation of a right to mine; or (ii) the variation of such a right to extend the area to which it relates; or (iii) the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and (b) the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and (c) at any time before the act was done, either: (i) a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or (ii) a public work was constructed or established on any of the land or waters affected by the act; the Commonwealth must, before the end of 6 months after this section commences: (d) give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and (e) notify the public in the determined way of the details set out in subsection (2). Details (2) The details are: (a) the date on which the act was done; and (b) the kind of mining involved; and (c) sufficient information to enable the area affected by the act to be identified; and (d) information about the way in which further details about the act may be obtained. Subdivision C—Acts attributable to a State or Territory 22F State/Territory acts may be validated If a law of a State or Territory contains provisions to the same effect as sections 22B and 22C, the law of the State or Territory may provide that intermediate period acts attributable to the State or Territory are valid, and are taken always to have been valid. 22G Entitlement to compensation Compensation where validation (1) If a law of a State or Territory validates an intermediate period act attributable to the State or Territory in accordance with section 22F, the native title holders are entitled to compensation. Recovery of compensation (2) The native title holders may recover the compensation from the State or Territory. States or Territories may create compensation entitlement (3) This section does not prevent a law of a State or Territory from creating an entitlement to compensation for an intermediate period act or for the validation of an intermediate period act. Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth, State and Territory laws. 22H Requirement to notify: mining rights (1) If: (a) an act that is attributable to a State or Territory consists of: (i) the creation of a right to mine; or (ii) the variation of such a right to extend the area to which it relates; or (iii) the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and (b) the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and (c) at any time before the act was done, either: (i) a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or (ii) a public work was constructed or established on any of the land or waters affected by the act; the State or Territory must, before the end of 6 months after the commencement of the law of the State or Territory that validates intermediate period acts attributable to the State or Territory in accordance with section 22F: (d) give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and (e) notify the public in the determined way of the details set out in subsection (2). Details (2) The details are: (a) the date on which the act was done; and (b) the kind of mining involved; and (c) sufficient information to enable the area affected by the act to be identified; and (d) information about the way in which further details about the act may be obtained. Division 2AA—Validation of transfers under New South Wales land rights legislation 22I Overview of Division In summary, this Division allows New South Wales to validate certain transfers under the Aboriginal Land Rights Act 1983 of that State. 22J Validation of transfers If: (a) future acts consist of the transfer of lands under section 36 of the Aboriginal Land Rights Act 1983 of New South Wales; and (b) the claims for the lands were made before 28 November 1994; and (c) the acts took place before or take place after the commencement of this section; and (d) the acts are not intermediate period acts; and (e) the acts are invalid to any extent because of Division 3 of Part 2 or for any other reason, but would be valid to that extent if native title did not exist in relation to the lands; a law of New South Wales may provide that the acts are valid, and are taken always to have been valid. 22K Effect of validation on native title The non‑extinguishment principle applies to the acts. 22L Entitlement to compensation Compensation where validation (1) If a law of New South Wales validates the acts, the native title holders concerned are entitled to compensation. Recovery of compensation (2) The native title holders may recover the compensation from New South Wales. Compensation to take into account rights etc. conferred by transferee (3) The compensation is to take into account all rights, interests and other benefits conferred, in relation to the lands, on the native title holders by, or by virtue of membership of, the Aboriginal Land Council (within the meaning of the Aboriginal Land Rights Act 1983 of New South Wales) to which the lands are transferred or by which the lands are held. NSW may create compensation entitlement (4) This section does not prevent a law of New South Wales from creating an entitlement to compensation for the acts or for their validation. Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth and State legislation. Division 2B—Confirmation of past extinguishment of native title by certain valid or validated acts 23A Overview of Division (1) In summary, this Division provides that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title. (2) If the acts were previous exclusive possession acts (involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession, or the construction or establishment of public works), the acts will have completely extinguished native title. (3) If the acts were previous non‑exclusive possession acts (involving grants of non‑exclusive agricultural leases or non‑exclusive pastoral leases), they will have extinguished native title to the extent of any inconsistency. (4) This Division also allows States and Territories to legislate, in respect o