New South Wales: Aboriginal Land Rights Act 1983 (NSW)

Aboriginal Land Rights Act 1983 No 42 An Act to repeal the Aborigines Act 1969 and to make provisions with respect to the land rights of Aboriginal persons, including provisions for or with respect to the constitution of Aboriginal Land Councils, the vesting of land in those Councils, the acquisition of land by or for those Councils and the allocations of funds to and by those Councils; to amend certain other Acts; and to make provisions for certain other purposes. WHEREAS— (1) Land and waters in the State of New South Wales were traditionally owned and occupied by Aboriginal persons— (2) Land and waters are of spiritual, social, cultural and economic importance to Aboriginal persons— (3) It is fitting to acknowledge the importance land and waters have for Aboriginal persons and the need of Aboriginal persons for land and waters— (4) It is accepted that as a result of past Government decisions the amount of land and waters set aside for Aboriginal persons has been progressively reduced without compensation— BE it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows— Part 1 Preliminary 1 Name of Act This Act may be cited as the Aboriginal Land Rights Act 1983. 2 Commencement (1) Sections 1 and 2 shall commence on the date of assent to this Act. (2) Except as provided by subsection (1), the several provisions of this Act shall commence on such day or days as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. 3 Purpose of Act The purposes of this Act are as follows— (a) to provide land rights for Aboriginal persons in New South Wales, (b) to provide for representative Aboriginal Land Councils in New South Wales, (c) to vest land in those Councils, (d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils, (e) to provide for the provision of community benefit schemes by or on behalf of those Councils. 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— Aboriginal Land Council means the New South Wales Aboriginal Land Council or a Local Aboriginal Land Council. Aboriginal owners of land means the Aboriginal persons whose names are entered on the Register of Aboriginal Owners because of the persons' cultural association with particular land. Note. An Aboriginal person's name and other relevant information is entered in the Register of Aboriginal Owners. Aboriginal person means a person who— (a) is a member of the Aboriginal race of Australia, and (b) identifies as an Aboriginal person, and (c) is accepted by the Aboriginal community as an Aboriginal person. adult Aboriginal person means an Aboriginal person who has attained the age of 18 years. Board means a Board of a Local Aboriginal Land Council. Board member means a member of a Board of a Local Aboriginal Land Council. code of conduct means the code of conduct that applies to an Aboriginal Land Council by the operation of this Act. Commonwealth Native Title Act or NTA means the Native Title Act 1993 of the Commonwealth. community benefit means a benefit or service provided for the benefit of Aboriginal persons, and may include, but is not limited to, the following— (a) funeral funds, (b) residential accommodation, (c) education and training, (d) scholarships and other assistance for education and training, (e) cultural activities, (f) child care, (g) aged care services. community benefits scheme means a scheme for the provision of community benefits funded wholly or in part by an Aboriginal Land Council. community development levy means the levy payable under Division 4A of Part 2. community, land and business plan means a plan prepared and approved under Division 6 of Part 5 or Division 5 of Part 7. compliance direction means a direction issued by the Registrar under Part 12. councillor means a member of the New South Wales Aboriginal Land Council. Court means the Land and Environment Court. investigator means a person appointed under section 216 to investigate the affairs, or specified affairs, of an Aboriginal Land Council. land includes any estate or interest in land, whether legal or equitable. land claim means a claim for land made under section 36. Local Aboriginal Land Council means a Local Aboriginal Land Council constituted under this Act. Local Aboriginal Land Council area means a Local Aboriginal Land Council area constituted under this Act. native title or native title rights and interests has the same meaning as in the Commonwealth Native Title Act. New South Wales Aboriginal Land Council means the New South Wales Aboriginal Land Council constituted under this Act. non-voting member, of a Local Aboriginal Land Council, means a member of that Council who does not have voting rights in relation to that Council. NPW Act means the National Parks and Wildlife Act 1974. officer of an Aboriginal Land Council means— (a) in relation to a Local Aboriginal Land Council, a Board member of the Council, or (b) in relation to the New South Wales Aboriginal Land Council, a councillor. records includes any of the following (whether in a written or electronic form)— (a) financial statements (including statements or lists of assets or liabilities), (b) bank statements or other authorised deposit-taking institution statements, (c) membership rolls, (d) voting rolls, (e) minutes of meetings, (f) attendance lists of meetings, (g) leases, contracts and other documents relating to arrangements to which an Aboriginal Land Council is a party. Region means a Region specified in Schedule 5. Register of Aboriginal Land Claims means the Register of Aboriginal Land Claims established under Division 2 of Part 9. Register of Aboriginal Owners means the Register of Aboriginal Owners established under Division 3 of Part 9. Registrar means the Registrar appointed under this Act. regulations means regulations made under this Act. relative, in relation to a person, means any of the following— (a) the parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the person or of the person's spouse or de facto partner, (b) the spouse or de facto partner of the person or of a person referred to in paragraph (a). residential tenancy agreement has the same meaning as in the Residential Tenancies Act 2010. rules means the rules of an Aboriginal Land Council that apply to the Council by the operation of this Act. satisfactory financial statements and documents means financial statements and documents furnished to the New South Wales Aboriginal Land Council under Division 2 of Part 8 by a Local Aboriginal Land Council that are determined by the New South Wales Aboriginal Land Council to be satisfactory in accordance with the requirements of that Division. short-term residential tenancy agreement means a residential tenancy agreement— (a) that is a fixed term agreement (within the meaning of the Residential Tenancies Act 2010) for a term of less than 3 years (including any option to renew the agreement) or is a periodic agreement (within the meaning of that Act), and (b) where the only parties to the agreement are a Local Aboriginal Land Council and one or more natural persons. voting member, of a Local Aboriginal Land Council, means a member of that Council who has voting rights in relation to that Council. voting rights, in relation to a Local Aboriginal Land Council, means the right of a member of the Council to vote in the elections held by, and on any matter to be decided by, the Council. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) A reference in this Act to— (a) a function includes a reference to a power, authority and duty, and (b) the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (3) The Chairperson of an Aboriginal Land Council may be referred to as the Chairman or Chairwoman, as the case requires. (4) Notes included in this Act are explanatory notes and do not form part of this Act. 5–34C (Repealed) Part 2 Land rights Division 1 35 (Repealed) Division 2 Claimable Crown lands 36 Claims to Crown lands (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires— claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division— (a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901, (b) are not lawfully used or occupied, (b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands, (c) are not needed, nor likely to be needed, for an essential public purpose, and (d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and (e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands). Crown Lands Minister means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased. (2) The New South Wales Aboriginal Land Council may make a claim for land on its own behalf or on behalf of one or more Local Aboriginal Land Councils. (3) One or more Local Aboriginal Land Councils may make a claim for land within its or their area or, with the approval of the Registrar, outside its or their area. (4) A claim under subsection (2) or (3)— (a) shall be in writing and, if a form for making such a claim has been prescribed, shall be in or to the effect of that form, (b) shall describe or specify the lands in respect of which it is made, (b1) (Repealed) (c) shall be lodged with the Registrar, who shall refer a copy thereof (together with a copy of any approval necessary under subsection (3)) to the Crown Lands Minister or, if there is more than one Crown Lands Minister, to each of them. (4A) The Registrar may refuse to refer a claim, or part of a claim, to the Crown Lands Minister if the Registrar is satisfied that— (a) the claim, or the part of the claim, relates to lands that are not vested in Her Majesty, or (b) the claim, or the part of the claim, has been made in contravention of an undertaking given by the claimant in an Aboriginal Land Agreement recorded in the register of Aboriginal Land Agreements under section 36AA while such an undertaking remains in force. (4B) Before refusing to refer a claim, or part of a claim, to the Crown Lands Minister, the Registrar must— (a) inform the claimant, by notice in writing, of the Registrar's intention to refuse to refer the claim, or the part of the claim, and the reasons for the refusal, and (b) invite the claimant to provide further information supporting the claim, or part of the claim, within 28 days of the giving of the notice (or such greater period as may be specified in the notice), and (c) consider any further information provided by the claimant within that period. (4C) If the Registrar has not referred a claim, or any part of a claim, to the Crown Lands Minister within 60 days after the claim was lodged with the Registrar or by the end of the period within which the claimant has been invited to provide further information supporting the claim, the Registrar is taken to have refused to refer the claim, or the part of the claim, to the Crown Lands Minister. (4D) An Aboriginal Land Council may appeal to the Court against a refusal to refer the claim, or any part of the claim, to the Crown Lands Minister. (4E) The Court is to hear and determine any appeal made to it under subsection (4D) and may order that the claim, or any part of the claim, be referred to the Crown Lands Minister if the Registrar fails to satisfy the Court that— (a) the claim, or the part of the claim, relates to lands that are not vested in Her Majesty, or (b) the claim, or the part of the claim, has been made in contravention of an undertaking given by the claimant in an Aboriginal Land Agreement recorded in the register of Aboriginal Land Agreements under section 36AA while such an undertaking remains in force. (5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall— (a) if the Crown Lands Minister is satisfied that— (i) the whole of the lands claimed is claimable Crown lands, or (ii) part only of the lands claimed is claimable Crown lands, grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or (b) if the Crown Lands Minister is satisfied that— (i) the whole of the lands claimed is not claimable Crown lands, or (ii) part of the lands claimed is not claimable Crown lands, refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require. (5AA) The Crown Lands Minister to whom a claim for lands has been referred must not grant a claim under subsection (5) if the Crown Lands Minister is satisfied that the claimant has entered into an Aboriginal Land Agreement under section 36AA that includes an undertaking by the claimant not to lodge a claim in respect of the lands claimed or to withdraw such a claim. (5AB) An Aboriginal Land Council may appeal to the Court against a decision of the Crown Lands Minister under subsection (5AA). (5AC) The Court is to hear and determine any appeal made to it under subsection (5AB) and may order the Crown Lands Minister to determine the claim if the Crown Lands Minister fails to satisfy the Court that the claimant has entered into an Aboriginal Land Agreement under section 36AA that includes an undertaking by the claimant not to lodge a claim in respect of the lands claimed or to withdraw such a claim. (5A) Where, under subsection (5), a Crown Lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown Lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition. (6) An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5)(b) of a claim made by it. (7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council. (8) A certificate being— (a) a certificate issued by a Crown Lands Minister stating that any land the subject of a claim under this section and specified in the certificate is needed or is likely to be needed as residential land, or (b) a certificate issued by a Crown Lands Minister, after consultation with the Minister administering this Act, stating that any land the subject of a claim under this section and specified in the certificate is needed or likely to be needed for an essential public purpose, shall be accepted as final and conclusive evidence of the matters set out in the certificate and shall not be called into question in any proceedings nor liable to appeal or review on any grounds whatever. (9) Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer. (9A) Where the transfer of lands to an Aboriginal Land Council under this section is of land to which the Western Lands Act 1901 applies but which is not within an area determined by the Minister administering that Act as being the urban area of a city, town or village, the transfer shall be effected by the granting to the Council of a lease in perpetuity under that Act but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer. (9B) A lease referred to in subsection (9A)— (a) may be granted without the necessity for the payment of any rent under the lease or may require the payment of a nominal rent, and (b) notwithstanding the Western Lands Act 1901, shall not be cancelled unless the Minister administering that Act has consulted with the Minister administering this Act. (9C) Land transferred under this section to 2 or more Aboriginal Land Councils may be transferred to those Councils as joint tenants or as tenants in common. (10) A transfer of lands pursuant to this section operates to revoke any dedication or reservation under the Crown Lands Consolidation Act 1913 to which the lands were subject immediately before the transfer. (11) Where, by reason of the existence of a forestry right (within the meaning of section 87A of the Conveyancing Act 1919) granted in respect of them or of an easement over them, any lands claimed under this section could not, but for this subsection, be regarded by a Crown Lands Minister as claimable Crown lands, the Crown Lands Minister may, for the purposes of this section, treat the lands as claimable Crown lands. (12) A transfer of lands pursuant to this section is subject to the following— (a) any easements affecting the lands immediately before the transfer, (b) any condition imposed under subsection (5A), (c) any forestry right within the meaning of section 87A of the Conveyancing Act 1919, and any restriction on use or covenant imposed under Division 4 of Part 6 of that Act in connection with that forestry right, in force in respect of the lands immediately before the transfer. (13) Where the transfer of lands in accordance with this section would not, but for this subsection, be authorised by the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901, the transfer of the lands in accordance with this section shall be deemed to have been authorised by whichever of those Acts the lands were subject to immediately before the transfer. (14) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may request a Crown Lands Minister to supply or cause to be supplied to it such information in relation to the Crown land or dealings in Crown land as is specified in the request and the Crown Lands Minister shall, so far as is reasonably practicable, comply with that request. (15) Duty under the Duties Act 1997 is not payable in respect of a transfer of lands in accordance with this section. (16) The definition of claimable Crown lands in subsection (1) is taken to include land vested in Property and Development NSW that complies with paragraphs (a)–(e) of that definition and that was, immediately before it vested in that Authority, claimable Crown lands within the meaning of that definition. (17) The provisions of this section are modified as follows in relation to its application to land vested in Property and Development NSW— (a) subsection (4)(c) requires the Registrar to refer a copy of a claim in relation to the land to the Minister administering the Property and Development NSW Act 2006 in addition to the other Ministers referred to in that paragraph, (b) a reference in subsection (5) to the Crown Lands Minister granting a claim by making a transfer referred to in that subsection is to be read as the Crown Lands Minister granting a claim and requiring Property and Development NSW to transfer the relevant land as referred to in that subsection, (c) a reference in subsection (14) to a Crown Lands Minister is to be read as a reference to Property and Development NSW, (d) a reference in subsection (14) to Crown land is a reference to land vested in Property and Development NSW that, immediately before it was vested in that Authority, was Crown land. (18) In accordance with a requirement by a Crown Lands Minister under subsection (5) (as modified by subsection (17)(b)), Property and Development NSW is to transfer land vested in it in relation to which a claim has been granted by that Minister, subject to the taking of any action required to implement a condition imposed under subsection (5A) on the grant of the claim. 36AA Aboriginal Land Agreements (1) In this section, Aboriginal Land Agreement means an agreement, in writing, between the Crown Lands Minister and one or more Aboriginal Land Councils (whether or not the agreement also includes other parties) that, in addition to any other matter that may be included in the agreement, makes provision for— (a) the exchange, transfer or lease of land to an Aboriginal Land Council, or (b) an undertaking by an Aboriginal Land Council not to lodge a claim, or to withdraw a claim, in relation to specified land. (2) An Aboriginal Land Council and the Crown Lands Minister may, at any time by notice in writing, commence negotiation, in good faith and in a manner agreed between the parties, for an Aboriginal Land Agreement whether or not a claim has been made under section 36 by the Council in relation to the land that is the subject of the proposed agreement. (3) The Aboriginal Land Council or the Crown Lands Minister may, with the approval of the other party, invite one or more other Aboriginal Land Councils, or any other person, to join the negotiations and enter into the Aboriginal Land Agreement. (4) An Aboriginal Land Council, the Crown Lands Minister or any other party may, at any time before the making of an Aboriginal Land Agreement, withdraw from negotiation for the agreement by notice in writing to the other party or parties. (5) Without limiting the matters that may be included in an Aboriginal Land Agreement, such an agreement may make provision for or with respect to the following— (a) financial or other consideration, (b) exchange, transfer or lease of land, (c) conditions or restrictions on the use of any land to which the agreement relates, (d) joint access to and management of land (including a lease of a type referred to in section 36A), (e) undertakings by an Aboriginal Land Council or the Crown Lands Minister with regard to the lease, transfer, management or use of any land, (f) the duration of the agreement, (g) the resolution of disputes arising under the agreement. (6) The Crown Lands Minister may enter into an Aboriginal Land Agreement whether or not a claim has been made under section 36 in relation to any lands to which the agreement relates. (7) If a proposed Aboriginal Land Agreement provides for the transfer or lease of lands for which a Minister other than the Crown Lands Minister is responsible, the concurrence of that other Minister is required before the agreement is made. (8) The provisions of section 36(9)–(13), (15) and (17) apply (with necessary modifications) to the transfer of lands in accordance with an Aboriginal Land Agreement in the same way as those provisions apply to the transfer of lands under that section. (9) An Aboriginal Land Council or the Crown Lands Minister may, at any time during the negotiation for an Aboriginal Land Agreement, notify the other party, in writing, that the agreement must not make provision with respect to specified lands. (10) The Crown Lands Minister is, on the making of an Aboriginal Land Agreement, authorised to transfer or lease Crown lands the subject of the agreement in accordance with the agreement. (11) If an Aboriginal Land Agreement provides for termination or transfer of an interest in land, other than an interest of the Crown, the transfer or termination may only be effected with the approval of the holder of the interest. (11A) The termination or transfer of an interest in land does not require the approval of the holder of the interest under subsection (11) if— (a) the holder's interest remains in force or is restored in substantially the same terms, or (b) the Crown Lands Minister may, under any other Act or law, terminate or transfer the interest without the holder's approval. (12) The Registrar is to keep and maintain a register in relation to Aboriginal Land Agreements made under this section. (13) The register required to be kept under this section is, subject to the regulations, to include such information and to be in such form as is determined by the Registrar. (14) The provisions of the Crown Lands Act 1989 that provide for the transfer of Crown lands do not apply in respect of the transfer of land carried out in accordance with an Aboriginal Land Agreement. (15) In this section— Crown Lands Minister has the same meaning as in section 36. interest in land includes— (a) a legal or equitable interest in the land, or (b) an easement, right, charge, power or privilege over, or in connection with, the land. 36A Special provision concerning certain Crown lands having nature conservation value (1) This section applies in relation to lands that— (a) are the subject of a claim by one or more Aboriginal Land Councils under section 36, and (b) the Crown Lands Minister is satisfied would be claimable Crown lands except for the fact that the lands are needed, or likely to be needed, for the essential public purpose of nature conservation. (2) If the Aboriginal Land Council or Councils making the claim agree to the imposition of the conditions that, before the grant of a claim to lands to which this section applies, the Aboriginal Land Council or Councils— (a) must negotiate a lease of the lands, that complies with the requirements of Part 4A of the NPW Act, with the Minister administering that Act, and (b) must agree— (i) to enter into a lease of the lands to the Minister administering the NPW Act in the terms negotiated in accordance with paragraph (a), and (ii) to the simultaneous reservation or dedication of the lands under the NPW Act, and (iii) to hold the lands as lands reserved or dedicated under the NPW Act, and (iv) to comply with the requirements of the NPW Act and, in particular, the requirements of Part 4A of that Act in relation to the lands, the Crown Lands Minister may, despite section 36(5)(b), grant a claim to lands to which this section applies. Note. Part 4A of the NPW Act deals with lands, reserved or dedicated under that Act, that are vested in an Aboriginal Land Council or Councils and are leased by that Council or those Councils to the Minister administering that Act. (3) The Crown Lands Minister must not grant a claim to lands to which this section applies unless the Minister administering the NPW Act— (a) has agreed to the reservation or dedication of the lands under Division 4 of Part 4A of that Act, and (b) has notified the Crown Lands Minister in writing that a lease, negotiated in pursuance of subsection (2) with the Aboriginal Land Council or Councils concerned, is acceptable to the Minister and has been executed in escrow by the proposed parties to it. Note. Division 4 of Part 4A of the NPW Act deals with the reservation or dedication and leasing under that Act of lands to which section 36A applies that have been granted by the Crown Lands Minister to an Aboriginal Land Council or Councils under this Act. (4) If a claim by one or more Aboriginal Land Councils relates partly to lands to which this section applies and partly to other lands, nothing in this section prevents the Crown Lands Minister from granting the claim— (a) as to so much of the lands to which this section applies—subject to and in accordance with this section, and (b) as to the balance of the lands—in accordance with the other provisions of this Part. (5) This section does not limit section 36 and the provisions of that section (in so far as they are applicable) apply to the lands to which this section applies, and to their transfer. (6) Parts 3 and 4 do not apply to lands to which this section applies on and from the date of their reservation or dedication under the NPW Act. (7) In this section, claimable Crown lands and Crown Lands Minister have the same meanings as in section 36. 36B Special provisions relating to Crown lands subject of land claim (1) Despite anything to the contrary in the Crown Lands Act 1989, if an Aboriginal Land Council has appealed to the Court against a refusal of a land claim made by it in relation to any land, the Crown Lands Minister must not, by any act or omission, cause anything to occur in relation to that land that would cause a claim (if any) lodged in relation to that land before the final determination of the appeal to be unsuccessful. (2) Subsection (1) does not prohibit the extension or continuance of an existing lawful use of the land to which the claim relates or anything done with the consent of the relevant Aboriginal Land Council. (3) If an Aboriginal Land Council has appealed to the Court against the refusal of a land claim or part of a land claim, a land claim may not be made in relation to the land the subject of the appeal until the final determination of the appeal. 37 Aboriginal lands in travelling stock reserves (1) Where a claim by an Aboriginal Land Council is lodged under section 36 in respect of land which is or is part of a travelling stock reserve within the meaning of the Local Land Services Act 2013 (not being a travelling stock reserve in the Western Division within the meaning of the Crown Lands Act 1989), the Registrar shall, in addition to complying with section 36(4)(c), refer a copy of the claim to Local Land Services. (2) This section has effect notwithstanding the provisions of the Local Land Services Act 2013 or Crown Lands Act 1989. (3) Subject to subsection (4), the Crown Lands Minister within the meaning of section 36 may, in respect of the land referred to in subsection (1), enter into an agreement with the claimant Aboriginal Land Council so referred to, so as to achieve the following purposes— (a) the vesting of the freehold title to that land, subject to any existing easements, in the claimant Aboriginal Land Council, (b) the leasing in perpetuity of that land to Her Majesty at a nominal rent, (c) the preparation of a plan of management in respect of that land giving the claimant Aboriginal Land Council or Aboriginal persons defined rights, or conferring or imposing on the claimant Aboriginal Land Council or on Aboriginal persons defined functions, in respect of that land. (4) The Minister referred to in subsection (3) shall not enter into an agreement under that subsection in respect of land unless the Minister is satisfied that Aboriginal persons have traditional rights to the land or that Aboriginal persons have had a long association with the land. (4A) The Minister referred to in subsection (3) shall not enter into an agreement under that subsection in respect of land which is or is part of a travelling stock reserve within the meaning of the Local Land Services Act 2013 without the approval of the Minister administering that Act. (5) For the purposes of giving effect to an agreement referred to in subsection (3)— (a) the Minister so referred to may, by notification published in the Gazette, vest the freehold title to land, subject to any existing easements, in the claimant Aboriginal Land Council and that notification shall have effect according to its tenor, and (b) the Minister so referred to and the claimant Aboriginal Land Council may execute any necessary instruments. (6) Subject to any plan of management prepared as referred to in subsection (3) in respect of the land, the vesting of the freehold title to any land in an Aboriginal Land Council, and the holding of the land under perpetual lease by Her Majesty, under this section shall not affect— (a) the application of the provisions of the Local Land Services Act 2013, or regulations under that Act, to the land, or (b) the status of the land for the purposes of any other law, other than a law relating to the registration of titles. (7) There shall be no appeal against, or review of, a decision of the Minister referred to in subsection (3) not to enter into an agreement under this section. (8) Duty under the Duties Act 1997 is not payable in respect of an agreement or other instrument executed for the purposes of this section. Division 3 Acquisition of other lands 38 Purchase, lease etc of property (1) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may purchase, take on lease or hold any property or may acquire property by gift inter vivos, devise or bequest. (1A) Despite subsection (1), a Local Aboriginal Land Council may purchase land only if— (a) the purchase price for the land is not more than 15% above the market value of the land, as assessed by a qualified valuer who is appointed by the Local Aboriginal Land Council, or (b) the New South Wales Aboriginal Land Council has given its written approval to that purchase, or (c) the purchase is for nominal consideration. (2) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may agree to the condition of any gift, devise or bequest to it, and the rule of law relating to perpetuities does not apply to any condition to which the Council has agreed under this section. (3) Property acquired by the New South Wales Aboriginal Land Council or a Local Aboriginal Land Council subject to a condition to which the Council has agreed shall not be dealt with by the Council except in accordance with the condition. (4) (Repealed) (5) Nothing in this Act prevents the vesting of lands pursuant to Division 3 of Part 4A of the NPW Act in more than one Local Aboriginal Land Council as tenants in common. Note. Division 3 of Part 4A of the NPW Act deals, among other matters, with the vesting in an Aboriginal Land Council or Councils of lands, reserved or dedicated under that Act, that are of cultural significance to Aboriginals and that are listed in Schedule 14 to that Act. (6) Subject to the regulations, a reference in this section to a qualified valuer is a reference to a person who— (a) has membership of the Australian Valuers Institute (other than associate or student membership), or (b) has membership of the Australian Property Institute (other than student or provisional membership), acquired in connection with his or her occupation as a valuer, or (c) has membership of the Royal Institution of Chartered Surveyors as a chartered valuer, or (d) is of a class prescribed by the regulations. 39 Acquisition of land (1) The Minister may, for the purposes of this Act, acquire land (including an interest in land) by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. (2) The Minister may do so only if the Minister is of the opinion that there are exceptional circumstances which warrant the acquisition of land for the purpose of satisfying the objectives of this Act. (3) If so required by the Minister, the New South Wales Aboriginal Land Council or the Local Aboriginal Land Council is to make provision to the satisfaction of the Minister for the payment of the purchase price or of compensation for compulsory acquisition (together with all necessary charges and expenses incidental to the acquisition). (4) The Minister may transfer land acquired under this section to an Aboriginal Land Council or other organisation or body established for the benefit of Aboriginal persons. (5) For the purposes of the Public Works Act 1912, an acquisition of land under this section is taken to be for an authorised work and the Minister is, in relation to that authorised work, taken to be the Constructing Authority. (6) Part 3 of the Public Works Act 1912 does not apply in respect of works constructed under this Act. Division 4 Land dealings by Aboriginal Land Councils 40 Interpretation (1) In this Division and Division 4A— agreement includes an arrangement. deal with land means— (a) sell, exchange, lease, mortgage, dispose of, or otherwise create or pass a legal or equitable interest in, land, or (b) grant an easement or covenant over land or release an easement or covenant benefiting land, or (c) enter into a biobanking agreement relating to land under the Threatened Species Conservation Act 1995 or a conservation agreement under the NPW Act, or (d) enter into a wilderness protection agreement relating to land under the Wilderness Act 1987, or (e) enter into a property vegetation plan under the Native Vegetation Act 2003, or (f) subdivide or consolidate land so as to affect, or consent to a plan of subdivision or consolidation of land that affects, the interests of an Aboriginal Land Council in that land, or (g) make a development application in relation to land, or (h) any other action (including executing an instrument) relating to land that is prescribed by the regulations. Note. In this Act, a reference to land includes any estate or interest in land, whether legal or equitable (see section 4(1)). dealing approval certificate—see section 41. development application means— (a) a development application within the meaning of the Environmental Planning and Assessment Act 1979, or (b) an application for approval of a project under Part 3A of the Environmental Planning and Assessment Act 1979, or (c) an application for approval of State significant infrastructure under Part 5.1 of the Environmental Planning and Assessment Act 1979. General Register of Deeds means the General Register of Deeds maintained under the Conveyancing Act 1919. land dealing means an action in relation to land of a kind referred to in paragraphs (a)–(h) of the definition of deal with land. land dealing approval agreement means an agreement entered into under a condition imposed under section 42G(6)(b). Register means the Register maintained under the Real Property Act 1900. registrable instrument means— (a) an instrument (other than a caveat or registration prohibition notice) giving effect to or forming part of a land dealing (within the meaning of this Division) that is registrable or capable of being made registrable under the Real Property Act 1900 or in respect of which a recording is required or permitted (under that or any other Act or Commonwealth Act) to be made in the Register maintained under that Act, or (b) a plan that is required or permitted to be registered under Division 3 of Part 23 of the Conveyancing Act 1919 and that is or gives effect to or forms part of a land dealing (within the meaning of this Division), or (c) an instrument (other than a registration prohibition notice) giving effect to or forming part of a land dealing (within the meaning of this Division) that is registrable or in respect of which a recording is required or permitted to be made in the General Register of Deeds. registration approval certificate—see section 41. registration prohibition notice—see section 42O. (2) For the purposes of this Division, land is vested in an Aboriginal Land Council if— (a) the Council has a legal interest in the land, or (a1) the land is the whole or part of land that is, pursuant to an Aboriginal Land Agreement under section 36AA, to be transferred to the Council, or (b) the land is the whole or part of land the subject of a claim under section 36 and— (i) the Crown Lands Minister is satisfied that the land is claimable Crown land under section 36, or (ii) the Court has ordered under section 36(7) that the land be transferred to the Council, and the land has not been transferred to the Council. (3) In this Division, an Aboriginal Land Council is taken to make a development application for land vested in the Council if the Council consents to such an application by another person. (4) For the purposes of this Division, land is of cultural and heritage significance to Aboriginal persons if the land is significant in terms of the traditions, observances, customs, beliefs or history of Aboriginal persons. 40AA–40D (Repealed) 41 Certificates—land vested in Aboriginal Land Councils (1) A dealing approval certificate— (a) for a land dealing relating to land vested in the New South Wales Aboriginal Land Council, is a certificate in the prescribed form signed by the Chief Executive Officer of the New South Wales Aboriginal Land Council that the dealing complies with section 42D, or (b) for a land dealing relating to land vested in a Local Aboriginal Land Council, is a certificate in the prescribed form signed by the Chief Executive Officer of the New South Wales Aboriginal Land Council that the dealing has been approved by the New South Wales Aboriginal Land Council. (2) A registration approval certificate for a registrable instrument relating to land vested in an Aboriginal Land Council is a certificate in the prescribed form signed by the Chief Executive Officer of the New South Wales Aboriginal Land Council that— (a) the registration, under the Real Property Act 1900, of the instrument is authorised under this Act, or (b) the registration, under Division 3 of Part 23 of the Conveyancing Act 1919, of the instrument is authorised under this Act, or (c) the making of a recording in respect of the instrument in the Register or the General Register of Deeds is authorised under this Act. (3) A dealing approval certificate signed by the Chief Executive Officer of the New South Wales Aboriginal Land Council is conclusive evidence of the matters certified in the certificate in favour of any person. (4) Subsection (3) does not operate in favour of any person who had knowledge that any of the matters certified in the certificate was incorrect before the land dealing was completed (whether or not any subsequent registration was required or has taken place). (5) A dealing approval certificate must set out any conditions of the relevant approval. 42 Restrictions on dealing with land subject to native title (1) An Aboriginal Land Council must not deal with land vested in it subject to native title rights and interests under section 36(9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act). (2) This section does not apply to or in respect of— (a) the lease of land by the New South Wales Aboriginal Land Council or one or more Local Aboriginal Land Councils to the Minister administering the NPW Act under Part 4A of that Act in accordance with a condition imposed under section 36A(2), or (b) a transfer of land to another Aboriginal Land Council, or (c) a lease of land referred to in section 37(3)(b). 42A Restrictions on dealing with land reserved or dedicated under the NPW Act (1) An Aboriginal Land Council must not deal with land that is vested in it and that is reserved or dedicated under Part 4A of the NPW Act except in accordance with that Act. (2) This Division and Division 4A (other than sections 40, 42B and this section) do not apply to land referred to in subsection (1). 42B Appropriation or resumption of Aboriginal land Despite anything in any Act, land vested in an Aboriginal Land Council must not be appropriated or resumed except by an Act of Parliament. 42C Land dealings by Aboriginal Land Councils generally (1) A land dealing by an Aboriginal Land Council in contravention of section 42D or 42E is void. (2) This Division is in addition to any requirements of or under any other Act in relation to a land dealing. (3) This section has effect despite any other Act or law. 42D Land dealings by New South Wales Aboriginal Land Council (1) The New South Wales Aboriginal Land Council must not deal with land vested in it unless— (a) it has notified the Local Aboriginal Land Council (if any) for the area in which the land is situated in writing of the land affected and the type of proposed dealing, and (b) it has considered any comments made by that Council within 28 days of that notice being given, and (c) (Repealed) (d) it has had regard to its community, land and business plan and any of its policies that are applicable, and (e) if it is appropriate to do so in the circumstances, it has considered the cultural and heritage significance of the land to Aboriginal persons in determining whether to deal with the land, and (f) the land dealing complies with a resolution of the New South Wales Aboriginal Land Council approving the dealing. (2) The Chief Executive Officer of the New South Wales Aboriginal Land Council must give a dealing approval certificate for a land dealing by the Council if the Chief Executive Officer is satisfied that the Council has complied with this Division in relation to the dealing. (3) The Chief Executive Officer of the New South Wales Aboriginal Land Council must give a registration approval certificate for an instrument if the Chief Executive Officer is satisfied that the instrument is a registrable instrument relating to a land dealing by the Council that complies with this Division. (4) This section does not apply to or in respect of the following land dealings by the New South Wales Aboriginal Land Council— (a) a lease for a period of less than 3 years (including any option to renew the lease), (b) a land dealing prescribed by the regulations for the purposes of this section. 42E Approval required for land dealings by Local Aboriginal Land Councils (1) A Local Aboriginal Land Council must not deal with land vested in it except in accordance with an approval of the New South Wales Aboriginal Land Council under section 42G. (2) However, the approval of the New South Wales Aboriginal Land Council is not required for the following land dealings by a Local Aboriginal Land Council— (a) a land dealing in relation to a lease for a period of less than 3 years (including any option to renew the lease) or a short-term residential tenancy agreement, other than a social housing management lease, (b) a land dealing prescribed by the regulations for the purposes of this section. (3) (Repealed) (4) An agreement to deal with land vested in a Local Aboriginal Land Council that is made by the Council is, if the land dealing is not approved by the New South Wales Aboriginal Land Council and an approval is required, unenforceable against the Local Aboriginal Land Council. (5) A person is not entitled to damages, or any other remedy, against a Local Aboriginal Land Council in respect of a warranty or other promise relating to an unenforceable agreement referred to in subsection (4). (6) In this section— social housing management lease means a lease (other than a residential tenancy agreement) entered into by a Local Aboriginal Land Council in relation to the provision or management of a community benefits scheme for residential accommodation for Aboriginal persons in its area. (7) This section has effect despite any other Act or law. Note. Approval of a land dealing by a Local Aboriginal Land Council must be by resolution of the voting members (see section 52G(e)). 42F Applications for approval of LALC land dealings by NSWALC and assessment fees (1) A Local Aboriginal Land Council may apply to the New South Wales Aboriginal Land Council for the approval of a land dealing relating to land vested in the Local Aboriginal Land Council. (2) An application by a Local Aboriginal Land Council to the New South Wales Aboriginal Land Council for approval of a dealing with land is— (a) to be made in accordance with the regulations, and (b) to contain the matters prescribed by the regulations, and (c) to be accompanied by any application fee, and any documents, prescribed by the regulations. (3) An application may also be accompanied by such additional documents and other information as the Local Aboriginal Land Council thinks fit. (4) The New South Wales Aboriginal Land Council may require the Local Aboriginal Land Council to provide additional documents and other information in relation to an application. (5) Regulations may be made for or with respect to the following— (a) the fees that may be charged by the New South Wales Aboriginal Land Council for assessing and determining applications for approval of land dealings, (b) without limiting paragraph (a), the fees that may be charged by the New South Wales Aboriginal Land Council with respect to the costs of appointing an expert advisory panel to assess an application for approval of a land dealing, (c) waiver of assessment fees, (d) provision of securities in respect of the payment of assessment fees, (e) notice by the New South Wales Aboriginal Land Council to applicants for approval of proposed assessment fees or security arrangements and other matters relating to determination of the application, (f) the circumstances in which the New South Wales Aboriginal Land Council may refuse to assess or determine an application. 42G Approval of LALC land dealings by NSWALC (1) Approval requirements The New South Wales Aboriginal Land Council must (subject to subsection (2) and any requirements of the regulations), on an application for approval of a land dealing being made by a Local Aboriginal Land Council in accordance with this Act, approve (with or without conditions) the land dealing if the New South Wales Aboriginal Land Council is satisfied that— (a) the application is in accordance with this Act, and (b) the members of the Local Aboriginal Land Council have passed a resolution in accordance with subsection (5) and that the dealing is in accordance with that resolution. (2) Refusal if contrary to LALC members' interests The New South Wales Aboriginal Land Council may refuse to approve a land dealing if it considers that the dealing is, or is likely to be, contrary to the interests of the members of the Local Aboriginal Land Council or other Aboriginal persons within the area of that Council. (3) In considering whether a land dealing is contrary to any such interests, the New South Wales Aboriginal Land Council may consider (and is not limited to considering) the following— (a) the community, land and business plan of the Local Aboriginal Land Council and whether, and to what extent, the land dealing is consistent with that plan, (b) the terms of the land dealing and whether those terms are fair and equitable to the Local Aboriginal Land Council in all the circumstances, (c) whether the Local Aboriginal Land Council, in passing the resolution, had proper regard to the cultural and heritage significance of the land to Aboriginal persons, (d) any assessment of the application for approval of the land dealing by an expert advisory panel under this Division, (e) whether it is likely that the proceeds of the land dealing will be managed and applied in the interests of the members of the Local Aboriginal Land Council or other Aboriginal persons within the area of the Council, (f) any applicable policy of the New South Wales Aboriginal Land Council in relation to land dealings by Local Aboriginal Land Councils. (4) The New South Wales Aboriginal Land Council is not required to consider any additional information or other material provided by a person other than the Local Aboriginal Land Council in considering whether a land dealing is, or is likely to be, contrary to the interests of the members of the Local Aboriginal Land Council or other Aboriginal persons within the area of that Council. (5) Requirements for approval resolutions A Local Aboriginal Land Council resolution approving a land dealing must— (a) be passed at a meeting of which prior notice was given, in accordance with the regulations, and at which a quorum was present, and (b) be passed by not less than 80 per cent of the voting members of the Council present at the meeting, and (c) contain the following matters— (i) the identity of the land, (ii) a statement that the impact of the land dealing on the cultural and heritage significance of the land to Aboriginal persons has been considered in determining whether to approve the dealing, (iii) the manner in which the land is to be dealt with, (iv) any conditions to which the approval of the dealing is subject. (6) Conditions of approval The New South Wales Aboriginal Land Council may only impose the following kinds of conditions on an approval of a land dealing— (a) a condition that is to be satisfied before completion of the land dealing, (b) a condition that requires the Local Aboriginal Land Council or one or more parties to the land dealing to enter into an agreement with the New South Wales Aboriginal Land Council as to specified matters to be carried out before or after the dealing is completed. Note. Section 119 enables conditions to be imposed on approvals and also enables approvals to be revoked. (7) Without limiting any other action that may be taken, failure by a Local Aboriginal Land Council to comply with a provision of a land dealing approval agreement is taken to be a breach by the Council of this Act. (8) Approval may relate to more than one dealing An approval under this section may relate to one or more land dealings. 42H Reasons for refusal or conditions If the New South Wales Aboriginal Land Council refuses an application for approval of a land dealing, or approves a land dealing subject to conditions, it must give the Local Aboriginal Land Council concerned a written statement of the reasons for the decision within 28 days after a request by that Local Aboriginal Land Council for the statement. 42I Assessment of dealings by expert advisory panels (1) The New South Wales Aboriginal Land Council may constitute expert advisory panels to assess applications for approval of land dealings by Local Aboriginal Land Councils. (2) An expert advisory panel is to be constituted in accordance with the regulations. (3) Regulations may be made for or with respect to the following— (a) a register of persons eligible to be appointed to expert advisory panels, (b) the addition of persons to, or removal of persons from, the register, (c) qualifications for inclusion on the register, (d) the appointment and removal of members of panels, (e) the remuneration of members of panels, (f) the circumstances in which an assessment by a panel is required or may be requested, (g) reports by panels, (h) regulating the assessment of matters by panels in respect of conflicts of interest and prohibiting persons from assessing matters if there is a conflict of interest or a pecuniary interest in a matter. 42IA Amendment of land dealing approvals (1) A Local Aboriginal Land Council for which a land dealing has been approved may make an application to the New South Wales Aboriginal Land Council for an amendment of the approval. (2) The New South Wales Aboriginal Land Council may— (a) amend the approval, or (b) refuse to amend the approval. (3) The New South Wales Aboriginal Land Council must not amend the approval if— (a) the land dealing has been completed, or (b) a registrable instrument has been registered in reliance on the approval. (4) The New South Wales Aboriginal Land Council must give the Local Aboriginal Land Council a written statement of the reasons for its decision in relation to the application if— (a) the decision is to refuse to amend the approval, and (b) the Local Aboriginal Land Council requests the written statement. (5) The written statement must be given within 28 days after the Local Aboriginal Land Council makes the request. (6) The regulations may make provision about the amendment of an approval, including— (a) applications for amendments of approvals, and (b) grounds for amendments of approvals, and (c) fees for amendments of approvals. (7) In this section— amend an approval includes amend the conditions of the approval, including by— (a) imposing new conditions on the approval, or (b) substituting a condition of the approval, or (c) omitting or amending a condition of the approval. 42J Revocation of land dealing approvals (1) The New South Wales Aboriginal Land Council must not revoke an approval of a land dealing if the land dealing has been completed or a registrable instrument has been registered in reliance on that approval. Note. This provision limits the power of the New South Wales Aboriginal Land Council to revoke an approval (see section 119(4)). (2) If an approval of a land dealing under this Division is revoked by the New South Wales Aboriginal Land Council, any dealing approval certificate or registration approval certificate relating to the land dealing ceases to have effect. (3) A Local Aboriginal Land Council must return any dealing approval certificate or registration approval certificate given to it that is revoked to the New South Wales Aboriginal Land Council within 14 days of notice of the revocation being given. 42K Certificates for dealings by Local Aboriginal Land Councils (1) Dealing approval certificate If the New South Wales Aboriginal Land Council approves a land dealing by a Local Aboriginal Land Council under this Division, the Chief Executive Officer of the New South Wales Aboriginal Land Council must give a dealing approval certificate for the land dealing to the Local Aboriginal Land Council within 14 days of approval being given. (2) Registration approval certificates The Chief Executive Officer of the New South Wales Aboriginal Land Council must give a registration approval certificate for an instrument relating to a land dealing by a Local Aboriginal Land Council if the Chief Executive Officer is satisfied as to the following— (a) that the instrument is a registrable instrument giving effect to or forming part of a land dealing approved by the New South Wales Aboriginal Land Council under this Division, (b) that any conditions of the approval by the New South Wales Aboriginal Land Council of the land dealing to which the instrument relates have been met, (c) that any community development levy payable in respect of that land dealing has been paid. (3) The Chief Executive Officer may refuse to give a dealing approval certificate or a registration approval certificate under this section if any assessment fee payable in relation to the application for approval of the land dealing to which the certificate relates has not been paid or is not subject to arrangements for payment that are satisfactory to the New South Wales Aboriginal Land Council. (3A) If the approval to which a dealing approval certificate relates is amended under section 42IA— (a) the dealing approval certificate and the registration approval certificates, if any, relating to the approval cease to have effect, and (b) the Local Aboriginal Land Council must, within 14 days after the amendment, return to the Chief Executive Officer of the New South Wales Aboriginal Land Council— (i) the dealing approval certificate, and (ii) if a registration approval certificate has been given for an instrument relating to the land dealing—each registration approval certificate, and (c) the Chief Executive Officer must, within 14 days after the amendment, give to the Local Aboriginal Land Council a new dealing approval certificate for the land dealing to which the amended approval relates, and (d) if the Chief Executive Officer is satisfied as to the matters referred to in subsection (2)(a)–(c) for an instrument to which the land dealing relates—the Chief Executive Officer must give to the Local Aboriginal Land Council a new registration approval certificate for the instrument. (4) For the purposes of any