Commonwealth: Native Title Amendment Act 1998 (Cth)

Native Title Amendment Act 1998 Act No. 97 of 1998 as amended This compilation was prepared on 1 September 2007 [This Act was amended by Act No. 63 of 2002; No. 125 of 2007] Amendment from Act No. 63 of 2002 [Schedule 2 (item 16) amended item 43 of Schedule 2 Schedule 2 (item 16) commenced on 30 September 1998] Amendments from Act No. 125 of 2007 [Schedule 4 (items 34 and 35) amended subclause 14(3) of Schedule 5 Schedule 4 (item 36) repealed and substituted note to clause 26 of Schedule 5 Schedule 4 (items 34–36) commenced on 1 September 2007] Prepared by the Office of Legislative Drafting and Publishing, Attorney‑General's Department, Canberra Contents 1 Short title..................................1 2 Commencement..............................1 3 Schedule(s).................................1 Schedule 1—Amendments relating to acts affecting native title etc. 3 Native Title Act 1993 3 Schedule 2—Amendments relating to applications, registration of claims etc. 158 Part 1—Native Title Act 1993 158 Part 2—Federal Court of Australia Act 1976 234 Schedule 3—Amendments relating to representative Aboriginal/Torres Strait Islander bodies 236 Part 1—Initial amendments 236 Part 2—Later amendments 253 Schedule 4—Addition of Schedule 291 Native Title Act 1993 291 Schedule 5—Application and transitional 344 Part 1—Contents of this Schedule 344 Part 2—Application of future act amendments 345 Part 3—Application of amendments relating to section 61 applications: proceedings relating to determinations 348 Part 4—Application of amendments relating to section 61 applications: registration of claims 352 Part 5—Various application and transitional provisions 357 Part 6—Validation of certain acts 361 Part 7—Compensation etc. 362 Part 8—Regulations 363 Part 9—Interpretation 364 An Act to amend the Native Title Act 1993, and for related purposes [Assented to 27 July 1998] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Native Title Amendment Act 1998. 2 Commencement (1) Sections 1, 2 and 3 commence on the day on which this Act receives the Royal Assent. (2) Subject to subsection (3), Part 1 of Schedule 3 commences on a day to be fixed by Proclamation. (3) If Part 1 of Schedule 3 does not commence within the period of 9 months beginning on the day on which this Act receives the Royal Assent, that Part commences on the first day after the end of that period. (4) Part 2 of Schedule 3 commences: (a) on the first day after the end of the period of 12 months after the commencement of Part 1 of Schedule 3; or (b) if, before the end of that period, a later day is fixed by Proclamation—on that later day. (5) Subject to subsection (6), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation. (6) If a provision referred to in subsection (5) does not commence within the period of 9 months beginning on the day on which this Act receives the Royal Assent, that provision commences on the first day after the end of that period. 3 Schedule(s) Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendments relating to acts affecting native title etc. Native Title Act 1993 1 Paragraph 3(d) After "past acts", insert ", and intermediate period acts,". 2 Section 4 Repeal the section, substitute: 4 Overview of Act Recognition and protection of native title (1) This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act. Topics covered (2) Essentially, this Act covers the following topics: (a) acts affecting native title (see subsections (3) to (6)); (b) determining whether native title exists and compensation for acts affecting native title (see subsection (7)). Kinds of acts affecting native title (3) There are basically 2 kinds of acts affecting native title: (a) past acts (mainly acts done before this Act's commencement on 1 January 1994 that were invalid because of native title); and (b) future acts (mainly acts done after this Act's commencement that either validly affect native title or are invalid because of native title). Consequences of past acts and future acts (4) For past acts and future acts, this Act deals with the following matters: (a) their validity; (b) their effect on native title; (c) compensation for the acts. Intermediate period acts (5) However, for certain acts (called intermediate period acts) done mainly before the judgment of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1, that would be invalid because they fail to pass any of the future act tests in Division 3 of Part 2, or for any other reason because of native title, this Act provides for similar consequences to past acts. Confirmation of extinguishment of native title (6) This Act also confirms that many acts done before the High Court's judgment, that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23B), the extinguishment is complete; if the acts are previous non‑exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency. Role of Federal Court and National Native Title Tribunal (7) This Act also: (a) provides for the Federal Court to make determinations of native title and compensation; and (b) establishes a National Native Title Tribunal with power to: (i) make determinations about whether certain future acts can be done and whether certain agreements concerning native title are to be covered by the Act; and (ii) provide assistance or undertake mediation in other matters relating to native title; and (c) deals with other matters such as the keeping of registers and the role of representative Aboriginal/Torres Strait Islander bodies. 3 Section 7 Repeal the section, substitute: 7 Racial Discrimination Act (1) This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975. (2) Subsection (1) means only that: (a) the provisions of the Racial Discrimination Act 1975 apply to the performance of functions 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. 4 Paragraph 11(2)(a) Repeal the paragraph, substitute: (a) in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc. and native title) of Part 2; or 5 Paragraph 11(2)(b) After "past acts", insert ", or intermediate period acts,". 6 Division 2 of Part 2 (heading) Repeal the heading, substitute: Division 2—Validation of past acts 7 Before Subdivision A of Division 2 of Part 2 Insert: Subdivision AA—Overview of Division 13A Overview of Division (1) In summary, this Division validates, or allows States and Territories to validate, certain acts that: (a) took place before 1 January 1994; and (b) would otherwise be invalid because of native title. This Division also covers certain acts done after that day consisting of an extension or renewal etc. of an act done before that day. (2) The acts validated are called past acts; they are defined in section 228. (3) This Division also sets out the effect of such validation on native title. The effect varies depending on the nature of the act. For this purpose, different categories of past act are defined by sections 229 to 232. 8 At the end of subsection 15(1) Add: Note: This subsection does not apply to the act if section 23C or 23G applies to the act. 9 Division 3 of Part 2 Repeal the Division, substitute: Division 2A—Validation of intermediate period acts etc. Subdivision A—Overview of Division 21 Overview of Division (1) In summary, this Division validates, or allows States and Territories to validate, certain acts that: (a) took place on or after 1 January 1994 but on or before 23 December 1996; and (b) would otherwise be invalid to any extent because they fail to pass any of the future act tests in Division 3 of Part 2 or for any other reason because of native title. (2) The acts are called intermediate period acts; they are defined in section 232A. (3) For this validation to apply, before the act was done, there must have been: (a) a grant of a freehold estate or a lease (other than a mining lease); or (b) a public work; over any of the land or waters concerned. (4) The Division also sets out the effect of such validation on native title. The effect varies depending on the nature of the act. For this purpose, different categories of intermediate period act are defined by sections 232B to 232E. (5) The structure of the Division is very similar to that of Division 2 (which deals with validation of past acts). Subdivision B—Acts attributable to the Commonwealth 22A Validation of Commonwealth acts If an intermediate period act is an act attributable to the Commonwealth, the act is valid, and is taken always to have been valid. 22B Effect of validation on native title Subject to subsection 24EBA(6), if an intermediate period act is an act attributable to the Commonwealth: (a) if it is a category A intermediate period act to which subsection 232B(2), (3) or (4) (which deal with things such as the grant or vesting of freehold estates and certain leases) applies—the act extinguishes all native title in relation to the land or waters concerned; and (b) if it is a category A intermediate period act to which subsection 232B(7) (which deals with public works) applies: (i) the act extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and (ii) the extinguishment is taken to have happened when the construction or establishment began; and (c) if it is a category B intermediate period act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned—the act extinguishes the native title to the extent of the inconsistency; and (d) if it is a category C intermediate period act or a category D intermediate period act—the non‑extinguishment principle applies to the act. Note: This section does not apply to the act if section 23C or 23G applies to the act. 22C Preservation of beneficial reservations and conditions If: (a) an intermediate period act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or (b) the doing of an intermediate period act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage); nothing in section 22B affects that reservation or condition or those rights or interests. 22D Entitlement to compensation (1) If an intermediate period act is an act attributable to the Commonwealth, the native title holders are entitled to compensation for the act. Who pays compensation (2) The compensation is payable by the Commonwealth. 22E Where "just terms" invalidity Section applies if acquisition of property other than on just terms (1) This section applies if the invalidity (disregarding section 22A) of an intermediate period act attributable to the Commonwealth results from a paragraph 51(xxxi) acquisition of property by the Commonwealth from any person having been made otherwise than on paragraph 51(xxxi) just terms. Entitlement to compensation (2) The person is entitled to compensation from the Commonwealth for the acquisition in accordance with Division 5 and, if that compensation does not ensure that the acquisition is made on paragraph 51(xxxi) just terms, to such additional compensation from the Commonwealth as is necessary to ensure that it is. 22EA Requirement to notify: mining rights (1) If: (a) an act that is attributable to the Commonwealth consists of: (i) the creation of a right to mine; or (ii) the variation of such a right to extend the area to which it relates; or (iii) the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and (b) the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and (c) at any time before the act was done, either: (i) a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or (ii) a public work was constructed or established on any of the land or waters affected by the act; the Commonwealth must, before the end of 6 months after this section commences: (d) give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and (e) notify the public in the determined way of the details set out in subsection (2). Details (2) The details are: (a) the date on which the act was done; and (b) the kind of mining involved; and (c) sufficient information to enable the area affected by the act to be identified; and (d) information about the way in which further details about the act may be obtained. Subdivision C—Acts attributable to a State or Territory 22F State/Territory acts may be validated If a law of a State or Territory contains provisions to the same effect as sections 22B and 22C, the law of the State or Territory may provide that intermediate period acts attributable to the State or Territory are valid, and are taken always to have been valid. 22G Entitlement to compensation Compensation where validation (1) If a law of a State or Territory validates an intermediate period act attributable to the State or Territory in accordance with section 22F, the native title holders are entitled to compensation. Recovery of compensation (2) The native title holders may recover the compensation from the State or Territory. States or Territories may create compensation entitlement (3) This section does not prevent a law of a State or Territory from creating an entitlement to compensation for an intermediate period act or for the validation of an intermediate period act. Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth, State and Territory laws. 22H Requirement to notify: mining rights (1) If: (a) an act that is attributable to a State or Territory consists of: (i) the creation of a right to mine; or (ii) the variation of such a right to extend the area to which it relates; or (iii) the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and (b) the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and (c) at any time before the act was done, either: (i) a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or (ii) a public work was constructed or established on any of the land or waters affected by the act; the State or Territory must, before the end of 6 months after the commencement of the law of the State or Territory that validates intermediate period acts attributable to the State or Territory in accordance with section 22F: (d) give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and (e) notify the public in the determined way of the details set out in subsection (2). Details (2) The details are: (a) the date on which the act was done; and (b) the kind of mining involved; and (c) sufficient information to enable the area affected by the act to be identified; and (d) information about the way in which further details about the act may be obtained. Division 2AA—Validation of transfers under New South Wales land rights legislation 22I Overview of Division In summary, this Division allows New South Wales to validate certain transfers under the Aboriginal Land Rights Act 1983 of that State. 22J Validation of transfers If: (a) future acts consist of the transfer of lands under section 36 of the Aboriginal Land Rights Act 1983 of New South Wales; and (b) the claims for the lands were made before 28 November 1994; and (c) the acts took place before or take place after the commencement of this section; and (d) the acts are not intermediate period acts; and (e) the acts are invalid to any extent because of Division 3 of Part 2 or for any other reason, but would be valid to that extent if native title did not exist in relation to the lands; a law of New South Wales may provide that the acts are valid, and are taken always to have been valid. 22K Effect of validation on native title The non‑extinguishment principle applies to the acts. 22L Entitlement to compensation Compensation where validation (1) If a law of New South Wales validates the acts, the native title holders concerned are entitled to compensation. Recovery of compensation (2) The native title holders may recover the compensation from New South Wales. Compensation to take into account rights etc. conferred by transferee (3) The compensation is to take into account all rights, interests and other benefits conferred, in relation to the lands, on the native title holders by, or by virtue of membership of, the Aboriginal Land Council (within the meaning of the Aboriginal Land Rights Act 1983 of New South Wales) to which the lands are transferred or by which the lands are held. NSW may create compensation entitlement (4) This section does not prevent a law of New South Wales from creating an entitlement to compensation for the acts or for their validation. Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth and State legislation. Division 2B—Confirmation of past extinguishment of native title by certain valid or validated acts 23A Overview of Division (1) In summary, this Division provides that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title. (2) If the acts were previous exclusive possession acts (involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession, or the construction or establishment of public works), the acts will have completely extinguished native title. (3) If the acts were previous non‑exclusive possession acts (involving grants of non‑exclusive agricultural leases or non‑exclusive pastoral leases), they will have extinguished native title to the extent of any inconsistency. (4) This Division also allows States and Territories to legislate, in respect of certain acts attributable to them, to extinguish native title in the same way as is done under this Division for Commonwealth acts. 23B Previous exclusive possession act (1) This section defines previous exclusive possession act. Grant of freehold estates or certain leases etc. on or before 23.12.1996 (2) An act is a previous exclusive possession act if: (a) it is valid (including because of Division 2 or 2A of Part 2); and Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2. (b) it took place on or before 23 December 1996; and (c) it consists of the grant or vesting of any of the following: (i) a Scheduled interest (see section 249C); (ii) a freehold estate; (iii) a commercial lease that is neither an agricultural lease nor a pastoral lease; (iv) an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A); (v) a residential lease; (vi) a community purposes lease (see section 249A); (vii) what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to "1 January 1994" were instead a reference to "24 December 1996"; (viii) any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters. Vesting of certain land or waters to be covered by paragraph (2)(c) (3) If: (a) by or under legislation of a State or a Territory, particular land or waters are vested in any person; and (b) a right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation; the vesting is taken for the purposes of paragraph (2)(c) to be the vesting of a freehold estate over the land or waters. Construction of public works commencing on or before 23.12.1996 (7) An act is a previous exclusive possession act if: (a) it is valid (including because of Division 2 or 2A); and (b) it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996. Exclusion of acts benefiting Aboriginal peoples or Torres Strait Islanders (9) An act is not a previous exclusive possession act if it is: (a) the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (b) the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or (c) the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (a) or (b) is in effect in relation to the land or waters. Note: The expression Aboriginal peoples is defined in section 253. Exclusion of national parks etc. (9A) An act is not a previous exclusive possession act if the grant or vesting concerned involves the establishment of an area, such as a national, State or Territory park, for the purpose of preserving the natural environment of the area. Exclusion of acts where legislation provides for non‑extinguishment (9B) An act is not a previous exclusive possession act if it is done by or under legislation that expressly provides that the act does not extinguish native title. Exclusion of Crown to Crown grants etc. (9C) If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a previous exclusive possession act: (a) unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters; or (b) if the grant or vesting does not, apart from this Act, extinguish native title in relation to the land or waters—unless and until the land or waters are (whether before or after 23 December 1996) used to any extent in a way that, apart from this Act, extinguishes native title in relation to the land or waters. Exclusion by regulation (10) The regulations may provide that an act is not a previous exclusive possession act. Effect of exclusions (11) To avoid doubt, the fact that an act is, because of any of the previous subsections, not a previous exclusive possession act does not imply that the act is not valid. 23C Confirmation of extinguishment of native title by previous exclusive possession acts of Commonwealth Acts other than public works (1) If an act is a previous exclusive possession act under subsection 23B(2) (including because of subsection 23B(3)) and is attributable to the Commonwealth: (a) the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned; and (b) the extinguishment is taken to have happened when the act was done. Public works (2) If an act is a previous exclusive possession act under subsection 23B(7) (which deals with public works) and is attributable to the Commonwealth: (a) the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and (b) the extinguishment is taken to have happened when the construction or establishment of the public work began. Other extinguishment provisions do not apply (3) If this section applies to the act, sections 15 and 22B do not apply to the act. 23D Preservation of beneficial reservations and conditions If: (a) a previous exclusive possession act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or (b) the doing of a previous exclusive possession act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage); nothing in section 23C affects that reservation or condition or those rights or interests. 23DA Confirmation of validity of use of certain land held by Crown etc. To avoid doubt, if the act is a previous exclusive possession act because of paragraph 23B(9C)(b) (which deals with grants to the Crown etc.), the use of the land or waters concerned as mentioned in that paragraph is valid. 23E Confirmation of extinguishment of native title by previous exclusive possession acts of State or Territory If a law of a State or Territory contains a provision to the same effect as section 23D or 23DA, the law of the State or Territory may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory. 23F Previous non‑exclusive possession act (1) This section defines previous non‑exclusive possession act. Acts on or before 23.12.96 (2) An act is a previous non‑exclusive possession act if: (a) it is valid (including because of Division 2 or 2A of Part 2); and Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2. (b) it takes place on or before 23 December 1996; and (c) it consists of the grant of a non‑exclusive agricultural lease (see section 247B) or a non‑exclusive pastoral lease (see section 248B). Acts after 23.12.96 (3) An act is also a previous non‑exclusive possession act if: (a) it takes place after 23 December 1996; and (b) it would be a previous non‑exclusive possession act under subsection (2) if that subsection were not limited in its application to acts taking place on or before 23 December 1996; and (c) it takes place: (i) in exercise of a legally enforceable right created by any act done on or before 23 December 1996; or (ii) in good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made. Exclusion by regulation (4) The regulations may provide that an act is not a previous non‑exclusive possession act. 23G Confirmation of partial extinguishment of native title by previous non‑exclusive possession acts of Commonwealth (1) Subject to subsection (2), if a previous non‑exclusive possession act (see section 23F) is attributable to the Commonwealth: (a) to the extent that the act involves the grant of rights and interests that are not inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned, the rights and interests granted, and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them; and (b) to the extent that the act involves the grant of rights and interests that are inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned: (i) if, apart from this Act, the act extinguishes the native title rights and interests—the native title rights and interests are extinguished; and (ii) in any other case—the native title rights and interests are suspended while the lease concerned, or the lease as renewed, re‑made, re‑granted or extended, is in force; and (c) any extinguishment under this subsection is taken to have happened when the act was done. Exclusion of certain acts (2) If the act is the grant of a pastoral lease or an agricultural lease to which paragraph 15(1)(a) applies, this section does not apply to the act. Effect on sections 15 and 22B (3) If this section applies to the act, sections 15 and 22B do not apply to the act. 23H Preservation of beneficial reservations and conditions If: (a) a previous non‑exclusive possession act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or (b) the doing of a previous non‑exclusive possession act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage); nothing in section 23G affects that reservation or condition or those rights or interests. 23HA Notification In the case of a previous non‑exclusive possession act to which subparagraph 23F(3)(c)(ii) applies: (a) notice must be given, in the way determined in writing by the Commonwealth Minister, to any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act about the doing or proposed doing of the act, or acts of that class, in relation to the land or waters concerned; and (b) they must be given an opportunity to comment on the act or class of acts. 23I Confirmation of partial extinguishment of native title by previous non‑exclusive possession acts of State or Territory If a law of a State or Territory contains provisions to the same effect as sections 23H and 23HA, the law of the State or Territory may make provision to the same effect as section 23G in respect of all or any previous non‑exclusive possession acts attributable to the State or Territory. 23J Compensation Entitlement (1) The native title holders are entitled to compensation in accordance with Division 5 for any extinguishment under this Division of their native title rights and interests by an act, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act. Commonwealth acts (2) If the act is attributable to the Commonwealth, the compensation is payable by the Commonwealth. State and Territory acts (3) If the act is attributable to a State or Territory, the compensation is payable by the State or Territory. 23JA Attribution of certain acts If: (a) a previous exclusive possession act or a previous non‑exclusive possession act took place before the establishment of a particular State, the Jervis Bay Territory, the Australian Capital Territory or the Northern Territory; and (b) the act affected land or waters that, when this section commences, form part of the State or Territory; then, for the purposes of this Division, the act is taken to be attributable to: (c) the State; or (d) if the Territory is the Jervis Bay Territory—the Commonwealth; or (e) if the Territory is the Australian Capital Territory or the Northern Territory—that Territory. Note: The meaning given to the expression attributable by section 239 will apply for the purposes of this Division to all other previous exclusive and non‑exclusive possession acts. Division 3—Future acts etc. and native title Subdivision A—Preliminary 24AA Overview Future acts (1) This Division deals mainly with future acts, which are defined in section 233. Acts that do not affect native title are not future acts; therefore this Division does not deal with them (see section 227 for the meaning of acts that affect native title). Validity of future acts (2) Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not. Validity under indigenous land use agreements (3) A future act will be valid if the parties to certain agreements (called indigenous land use agreements—see Subdivisions B, C and D) consent to the act being done. A future act (other than an intermediate period act) that has already been done invalidly may also be validated as a result of such agreements. Other bases for validity (4) A future act will also be valid to the extent covered by any of the following: (a) section 24FA (future acts where procedures indicate absence of native title); (b) section 24GB (acts permitting primary production on non‑exclusive agricultural or pastoral leases); (c) section 24GD (acts permitting off‑farm activities directly connected to primary production activities); (d) section 24GE (granting rights to third parties etc. on non‑exclusive agricultural or pastoral leases); (e) section 24HA (management of water and airspace); (f) section 24IA (acts involving renewals and extensions etc. of acts); (g) section 24JA (acts involving reservations, leases etc.); (h) section 24KA (acts involving facilities for services to the public); (i) section 24LA (low impact future acts); (j) section 24MD (acts that pass the freehold test—but see subsection (5)); (k) section 24NA (acts affecting offshore places). Right to negotiate (5) In the case of certain acts covered by section 24IC (permissible lease etc. renewals) or section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a "right to negotiate"). Extinguishment/non‑extinguishment; procedural rights and compensation (6) This Division provides that, in general, valid future acts are subject to the non‑extinguishment principle. The Division also deals with procedural rights and compensation for the acts. Activities etc. prevail over native title (7) To avoid doubt, section 44H provides that a valid lease, licence, permit or authority, and any activity done under it, prevail over any native title rights and interests and their exercise. Statutory access rights (8) This Division confers access rights in respect of non‑exclusive agricultural and non‑exclusive pastoral leases on certain persons covered by registered native title claims (see Subdivision Q). 24AB Order of application of provisions Indigenous land use agreement provisions (1) To the extent that a future act is covered by section 24EB (which deals with the effect of indigenous land use agreements on future acts), it is not covered by any of the sections listed in paragraphs 24AA(4)(a) to (k). Other provisions (2) To the extent that a future act is covered by a particular section in the list in paragraphs 24AA(4)(a) to (k), it is not covered by a section that is lower in the list. Note: It is important to know under which particular provision a future act is valid because the consequences in terms of compensation and procedural rights may be different. 24AC Regulations about notification The regulations may impose requirements to notify persons of acts, or classes of acts, that are to any extent valid under this Division (whether such notice is required to be given before or after the acts are done). Subdivision B—Indigenous land use agreements (body corporate agreements) 24BA Indigenous land use agreements (body corporate agreements) An agreement meeting the requirements of sections 24BB to 24BE is an indigenous land use agreement. Note: Subdivisions C and D provide for other kinds of indigenous land use agreements. 24BB Coverage of body corporate agreements The agreement must be about one or more of the following matters in relation to an area: (a) the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes; (aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done; Note: Intermediate period acts are or can be validated only under Division 2A. (ab) changing the effects, that are provided for by section 22B or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes; (b) withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area; (c) the relationship between native title rights and interests and other rights and interests in relation to the area; (d) the manner of exercise of any native title rights and interests or other rights and interests in relation to the area; (e) extinguishing native title rights and interests in relation to land or waters in the area by the surrender of those rights and interests to the Commonwealth, a State or a Territory; (ea) compensation for any past act, intermediate period act or future act; (f) any other matter concerning native title rights and interests in relation to the area. Note 1: If the agreement involves consent to the doing of a future act or class of future act, or the doing of a future act or class of future act subject to conditions, it must include a statement to that effect: see paragraph 24EB(1)(b). Note 2: If a future act covered by such a statement would otherwise be subject to the "right to negotiate" provisions in Subdivision P, the agreement must also include a statement that those provisions are not intended to apply: see paragraph 24EB(1)(c). Note 3: If the agreement involves the extinguishment of native title by surrender, it must include a statement to that effect: see paragraph 24EB(1)(d). 24BC Body corporate agreements only where bodies corporate for whole area The agreement must not be made unless there are registered native title bodies corporate in relation to all of the area. 24BD Parties to body corporate agreements Registered native title bodies corporate (1) All of the registered native title bodies corporate in relation to the area must be parties to the agreement. Governments (2) If the agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, a State or a Territory as mentioned in paragraph 24BB(e), the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party. Others (3) Any other person or persons may be parties. Procedure where no representative body party (4) If there are any representative Aboriginal/Torres Strait Islander bodies for any of the area and none of them is proposed to be a party to the agreement, the registered native title body corporate, before entering into the agreement: (a) must inform at least one of the representative Aboriginal/Torres Strait Islander bodies of its intention to enter into the agreement; and (b) may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement. 24BE Consideration and conditions (1) The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law). Consideration may be freehold grant or other interests (2) Without limiting subsection (1), the consideration may be the grant of a freehold estate in any land, or any other interests in relation to land whether statutory or otherwise. 24BF Assistance to make body corporate agreements Persons wishing to make the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement. 24BG Application for registration of body corporate agreements Application (1) Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements. Things accompanying application (2) The application must be accompanied by a copy of the agreement and any other prescribed documents or information. 24BH Notice of body corporate agreements (1) The Registrar must: (a) give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement: (i) the Commonwealth Minister; (ii) if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory; (iii) any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement; (iv) any local government body for the area covered by the agreement; (v) any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and (b) notify the public in the determined way of the agreement in accordance with subsection (2). Content of notice (2) The notice under paragraph (1)(a) or (b) must: (a) describe the area covered by the agreement; and (b) state the name of each party to the agreement and the address at which the party can be contacted; and (c) set out any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b), (c) or (d). 24BI Registration of body corporate agreements (1) Subject to this section, the Registrar must register the agreement on the Register of Indigenous Land Use Agreements. (2) The Registrar must not register the agreement if any of the parties to the agreement advises the Registrar, within 1 month after the Registrar gives notice under section 24BH, that the party does not wish the agreement to be registered on the Register. (3) The Registrar must not register the agreement if: (a) a representative Aboriginal/Torres Strait Islander body for any of the area advises the Registrar, within 1 month after the Registrar gives notice under section 24BH, that the requirements of paragraph 24BD(4)(a) were not complied with in relation to the agreement; and (b) the Registrar is satisfied that the requirements were not complied with. Subdivision C—Indigenous land use agreements (area agreements) 24CA Indigenous land use agreements (area agreements) An agreement meeting the requirements of sections 24CB to 24CE is an indigenous land use agreement. Note: Subdivisions B and D provide for other kinds of indigenous land use agreements. 24CB Coverage of area agreements The agreement must be about one or more of the following matters in relation to an area: (a) the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes; (aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done; Note: Intermediate period acts are or can be validated only under Division 2A. (ab) changing the effects, that are provided for by section 22B or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes; (b) withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area; (c) the relationship between native title rights and interests and other rights and interests in relation to the area; (d) the manner of exercise of any native title rights and interests or other rights and interests in relation to the area; (e) extinguishing native title rights and interests in relation to land or waters in the area by the surrender of those rights and interests to the Commonwealth, a State or a Territory; (ea) compensation for any past act, intermediate period act or future act; (f) any other matter concerning native title rights and interests in relation to the area; (g) any matter concerning rights conferred by Subdivision Q (which gives certain persons covered by registered native title claims rights of access to non‑exclusive agricultural and pastoral leases). Note 1: If the agreement involves consent to the doing of a future act or class of future act, or the doing of a future act or class of future act subject to conditions, it must include a statement to that effect: see paragraph 24EB(1)(b). Note 2: If a future act covered by such a statement would otherwise be subject to the "right to negotiate" provisions in Subdivision P, the agreement must also include a statement that those provisions are not intended to apply: see paragraph 24EB(1)(c). Note 3: If the agreement involves the extinguishment of native title by surrender, it must include a statement to that effect: see paragraph 24EB(1)(d). 24CC Requirement that no bodies corporate for whole of area The agreement must not be made if there are registered native title bodies corporate in relation to all of the area. Note: If there are registered native title bodies corporate for all of the area, an agreement under Subdivision B may be made. 24CD Parties to area agreements Native title group to be parties (1) All persons in the native title group (see subsection (2) or (3)) in relation to the area must be parties to the agreement. Native title group where registered claimant or body corporate (2) If there is a registered native title claimant, or a registered native title body corporate, in relation to any of the land or waters in the area, the native title group consists of: (a) all registered native title claimants in relation to land or waters in the area; and Note 1: Registered native title claimants are persons whose names appear on the Register of Native Title Claims as applicants in relation to claims to hold native title: see the definition of registered native title claimant in section 253. Note 2: The agreement will bind all members of the native title claim group concerned: see paragraph 24EA(1)(b). (b) all registered native title bodies corporate in relation to land or waters in the area; and (c) if, for any part (the non-claimed/determined part) of the land or waters in the area, there is neither a registered native title claimant nor a registered native title body corporate—one or more of the following: (i) any person who claims to hold native title in relation to land or waters in the non-claimed/determined part; (ii) any representative Aboriginal/Torres Strait Islander body for the non-claimed/determined part. Native title group where no registered claimant or body corporate (3) If subsection (2) does not apply, the native title group consists of one or more of the following: (a) any person who claims to hold native title in relation to land or waters in the area; (b) any representative Aboriginal/Torres Strait Islander body for the area. Other native title parties (4) If the native title group is covered by subsection (2), one or more of the following may also be parties to the agreement: (a) any other person who claims to hold native title in relation to land or waters in the area; (b) any representative Aboriginal/Torres Strait Islander body for the area. Government parties (5) If the agreement makes provision for the extinguishment of native title rights and interests by surrendering them to the Commonwealth, a State or Territory as mentioned in paragraph 24CB(e), the Commonwealth, State or Territory must be a party to the agreement. If the agreement does not make such provision, the Commonwealth, a State or a Territory may still be a party. Other parties (6) Any other person may be a party to the agreement. Procedure where no representative body party (7) If there are any representative Aboriginal/Torres Strait Islander bodies for any of the area and none of them is proposed to be a party to the agreement, a person in the native title group, before entering into the agreement: (a) must inform at least one of the representative Aboriginal/Torres Islander bodies of its intention to enter into the agreement; and (b) may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement. Note: The registration of agreements that are certified by a representative Aboriginal/Torres Strait Islander body is facilitated under section 24CK. 24CE Consideration and conditions (1) The agreement may be given for any consideration, and subject to any conditions, agreed by the parties (other than consideration or conditions that contravene any law). Consideration may be freehold grant or other interests (2) Without limiting subsection (1), the consideration may be the grant of a freehold estate in any land, or any other interests in relation to land whether statutory or otherwise. 24CF Assistance to make area agreements Persons wishing to make the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating the agreement. 24CG Application for registration of area agreements Application (1) Any party to the agreement may, if all of the other parties agree, apply in writing to the Registrar for the agreement to be registered on the Register of Indigenous Land Use Agreements. Things accompanying application (2) The application must be accompanied by a copy of the agreement and any other prescribed documents or information. Certificate or statement to accompany application in certain cases (3) Also, the application must either: (a) have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 202(4)(e) in relation to the area; or (b) include a statement to the effect that the following requirements have been met: (i) all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; (ii) all of the persons so identified have authorised the making of the agreement; Note: The word authorise is defined in section 251A. together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met. 24CH Notice of area agreements etc. (1) The Registrar must: (a) give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement: (i) the Commonwealth Minister; (ii) if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory; (iii) any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement; (iv) any local government body for the area covered by the agreement; (v) any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and (b) notify the public in the determined way of the agreement in accordance with subsection (2). Content of notice (2) The notice under paragraph (1)(a) or (b) must: (a) describe the area covered by the agreement; and (b) state the name of each party to the agreement and the address at which the party can be contacted; and (c) set out any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b),(c) or (d); and (d) include a statement that, within the period (the notice period) of 3 months after the notification day (see subsection (3)): (i) if the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a))—any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraphs 202(8)(a) and (b) were not satisfied in relation to the certification; or (ii) if the application contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement)—any person claiming to hold native title in relation to land or waters in the area covered by the agreement may wish, in response to the notice, to make a native title determination application or equivalent application under a law of a State or Territory. Notice to specify day (3) The notice under paragraph (1)(a) or (b) must specify a day as the notification day for the agreement. Each such notice in relation to the agreement must specify the same day. Which days may be specified (4) That day must be a day by which, in the Registrar's opinion, it is reasonable to assume that all notices under paragraph (1)(a) or (b) in relation to the agreement will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs. 24CI Objections against registration Making objections (1) If the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)), any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraphs 202(8)(a) and (b) were not satisfied in relation to the certification. Assistance in withdrawing objection (2) If an objection is made within the notice period, the parties to the agreement may request assistance from the NNTT or a recognised State/Territory body in negotiating with the person making the objection with a view to having the objection withdrawn. 24CJ Decision about registration The Registrar must, after the end of the notice period, decide whether or not to register an agreement covered by an application under this Subdivision on the Register of Indigenous Land Use Agreements. However, in a case where section 24CL is to be applied, the Registrar must not do so until all persons covered by paragraph (2)(b) of that section are known. 24CK Registration of area agreements certified by representative bodies Registration only if conditions satisfied (1) If the application for registration of the agreement was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)) and the conditions in this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement. First condition (2) The first condition is that: (a) no objection under section 24CI against registration of the agreement was made within the notice period; or (b) one or more objections under section 24CI against registration of the agreement were made within the notice period, but they have all been withdrawn; or (c) one or more objections under section 24CI against registration of the agreement were made within the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the Registrar that the requirements of paragraphs 202(8)(a) and (b) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned. Second condition (3) The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement. Matters to be taken into account (4) In deciding whether he or she is satisfied as mentioned in paragraph (2)(c), the Registrar must take into account any information given in relation to the matter by: (a) the persons making the objections mentioned in that paragraph; and (b) the representative Aboriginal/Torres Strait Islander bodies that certified the application; and may, but need not, take into account any other matter or thing. 24CL Registration of area agreements not certified by representative Aboriginal/Torres Strait Islander bodies Registration only if conditions satisfied (1) If the application for registration of the agreement contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement), and the conditions in subsections (2) and (3) of this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement. First condition (2) The first condition is that the following persons are parties to the agreement: (a) any person who is, at the end of the notice period, a registered native title claimant or a registered native title body corporate in relation to any of the land or waters in the area covered by the agreement; and (b) any person who, after the end of the notice period, becomes a registered native title claimant in relation to any of the land or waters in the area covered by the agreement, where the application containing the claim was made before the end of the notice period and: (i) the claim is accepted by the Registrar for registration under subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy conditions equivalent to those set out in sections 190B and 190C under a law of a State or Territory; or (ii) the claim is accepted by the Registrar for registration as a result of an application under subsection 190D(2), where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or (iii) the claim is found to satisfy conditions equivalent to those set out in sections 190B and 190C under a provision of a law of a State or Territory to similar effect as section 190D, and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii) of this paragraph. Second condition (3) The second condition is that the Registrar considers that the requirements in paragraph 24CG(3)(b) (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement) have been met. Matters to be taken into account (4) In deciding whether the requirements have been met, the Registrar must take into account: (a) the statements in the application; and (b) any information the Registrar is given on the matter by any representative Aboriginal/Torres Strait Islander body or by any other body or person; and may, but need not, take into account any other matter or thing. Subdivision D—Indigenous land use agreements (alternative procedure agreements) 24DA Indigenous land use agreements (alternative procedure agreements) An agreement meeting the requirements of sections 24DB to 24DF is an indigenous land use agreement. Note: Subdivisions B and C provide for other kinds of indigenous land use agreements. 24DB Coverage of alternative procedure agreements The agreement must be about one or more of the following matters in relation to an area: (a) the doing, or the doing subject to conditions (which may be about procedural matters), of particular future acts, or future acts included in classes; (aa) particular future acts (other than intermediate period acts), or future acts (other than intermediate period acts) included in classes, that have already been done; Note: Intermediate period acts are or can be validated only under Division 2A. (b) withdrawing, amending, varying or doing any other thing in relation to an application under Division 1 of Part 3 in relation to land or waters in the area; (c) the relationship between native title rights and interests and other rights and interests in relation to the area; (d) the manner of exercise of any native title rights and interests or other rights and interests in relation to the area; (e) providing a framework for the making of other agreements about matters relating to native title rights and interests; (ea) compensation for any past act, intermediate period act or future act; (f) any other matter concerning native title rights and interests in relation to the area; (g) any matter concerning rights conferred by Subdivision Q (which gives certain persons covered by registered native title claims rights of access to non‑exclusive agricultural and pastoral leases). Note 1: If the agreement involves consent to the doing of a future act or class of future act, or the doing of a future act or class of future act subject to conditions, it must include a statement to that effect: see paragraph 24EB(1)(b). Note 2: If a future act covered by such a statement would otherwise be subject to the "right to negotiate" provisions in Subdivision P, the agreement must also include a statement that those provisions are not intended to apply: see paragraph 24EB(1)(c). 24DC No extinguishment of native title The agreement must not provide for the extinguishment of any native title rights or interests. Note: The non‑extinguishment principle will apply to any future acts consented to in the agreement: see subsection 24EB(3). 24DD Bodies corporate and representative bodies etc. No bodies corporate for whole of area (1) The agreement must not be made if there are registered native title bodies corporate in relation to all of the land and waters in the area. Note: If there are registered native title bodies corporate for all of the area, an agreement under Subdivision B may be made. Body corporate or representative body for area (2) There must be at least one registered native title body corporate in relation to land or waters in the area or at least one representative Aboriginal/Torres Strait Islander body for the area. 24DE Parties to alternative procedure agreements Native title group and relevant governments to be parties (1) All persons in the native title group (see subsection (2)) in relation to the area must be parties to the agreement, as must every relevant government (see subsection (3)). Native title group (2) The native title group consists of: (a) all registered native title bodies corporate in relation to land or waters in the area; and (b) all representative Aboriginal/Torres Strait Islander bodies for the area. Relevant government (3) Each of t