Queensland: Torres Strait Islander Land Act 1991 (Qld)

Torres Strait Islander Land Act 1991 An Act providing for the grant, and the claim and grant, of land as Torres Strait Islander land, and for other purposes Whereas— 1 Before European settlement land in what is now the State of Queensland was occupied, used and enjoyed by Torres Strait Islanders in accordance with Island custom. 2 Land is of spiritual, social, historical, cultural and economic importance to Torres Strait Islanders. 3 After European settlement many Torres Strait Islanders maintained their ancestors' customary affiliation with particular areas of land. 4 Some Torres Strait Islanders have a historical association with particular areas of land based on them or their ancestors having lived on or used the land or neighbouring land. 5 Some Torres Strait Islanders have a requirement for land to ensure their economic or cultural viability. 6 Some land has been set aside for Torres Strait Islander reserves or for the benefit of Torres Strait Islanders and deeds of grant in trust are held on behalf of certain Torres Strait Islanders. 7 The Parliament is satisfied that Torres Strait Islander interests and responsibilities in relation to land have not been adequately and appropriately recognised by the law and that this has contributed to a general failure of previous policies in relation to Torres Strait Islanders. 8 The Parliament is further satisfied that special measures need to be enacted for the purpose of securing adequate advancement of the interests and responsibilities of Torres Strait Islanders and to rectify the consequences of past injustices. 9 It is, therefore, the intention of the Parliament to make provision, by the special measures enacted by this Act, for the adequate and appropriate recognition of the interests and responsibilities of Torres Strait Islanders in relation to land and thereby to foster the capacity for self-development, and the self-reliance and cultural integrity, of Torres Strait Islanders. Part 1 Preliminary 1 Short title This Act may be cited as the Torres Strait Islander Land Act 1991. 2 Definitions The dictionary in schedule 1 defines particular words used in this Act. 3 Torres Strait Islanders particularly concerned with land etc. (1) For the purposes of this Act, a Torres Strait Islander is particularly concerned with land if the Torres Strait Islander— (a) has a particular connection with the land under Island custom; or (b) lives on or uses the land or neighbouring land. (2) For the purposes of this Act, Torres Strait Islanders are particularly concerned with land if— (a) they are members of a group that has a particular connection with the land under Island custom; or (b) they live on or use the land or neighbouring land. 4 Acts binds all persons This Act binds all persons, including the State, and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States. Part 2 Basic concepts Division 1 Torres Strait Islanders and their customs 5 Meaning of Torres Strait Islander A Torres Strait Islander is a person who is a descendant of an indigenous inhabitant of the Torres Strait Islands. 5.21 [Repealed] 6 Meaning of Island custom Island custom, known in the Torres Strait as Ailan Kastom, is the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships. Division 2 Torres Strait Islander land 7 Meaning of Torres Strait Islander land Torres Strait Islander land is transferred land. Division 3 Transferable and transferred land 8 Meaning of transferable and transferred land (1) Transferable land is land that is to be granted under part 4. (2) Transferred land is land that is granted under part 4. 9 Lands that are transferable lands (1) The following lands are transferable lands— (a) DOGIT land; (b) Torres Strait Islander reserve land; (c) available State land the Minister declares to be transferable land. (2) However, land mentioned in subsection (1) ceases to be transferable land to the extent either of the following applies— (a) it is taken, under the Acquisition Act, by a constructing authority; (b) it is available land approved for a grant in fee simple by the chief executive under section 28C. (3) Also, land mentioned in subsection (1) is not transferable land to the extent it is the subject of any of the following— (a) a declaration in force under section 13; (b) an offer to allocate available land under section 28T, while the offer is in force; (c) an allocation process for available land under part 2A, division 6, until the process ends. 9.05 [Repealed] 9.09 [Repealed] 9.11 [Repealed] 10 DOGIT land (1) DOGIT land is land (other than a road or prescribed DOGIT land) that, at the beginning of the enactment day, was— (a) granted in trust under the Land Act 1962 for the benefit of Torres Strait Islander inhabitants or for the purpose of a Torres Strait Islander reserve; or (b) within the external boundaries of an area of such land and— (i) reserved and set apart for, or dedicated to, a public purpose under the Land Act 1962; or (ii) land that has become unallocated State land by way of resumption for a public purpose within the meaning of the Land Act 1962; or (iii) subject to a lease granted under the Land Holding Act; or (iv) subject to a special lease granted under the Land Act 1962; or (v) the subject of an application under the Land Holding Act, section 5, that had been approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act, but for which a lease under that Act has not been granted. (2) DOGIT land includes land within the external boundaries of land mentioned in subsection (1)(a) that has, since the enactment day, ceased to be a road. (3) Also, DOGIT land includes land within the external boundaries of land mentioned in subsection (1)(a) if— (a) the land was the subject of an application under the Land Holding Act, section 5, that was approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act after the enactment day; and (b) a lease under that Act has not been granted for the land. (4) DOGIT land does not include land within the external boundaries of land mentioned in subsection (1)(a) if the land has, since the enactment day, become a road. 11 Torres Strait Islander reserve land (1) Torres Strait Islander reserve land is land that, at the beginning of the enactment day, is— (a) reserved and set apart under the Land Act 1962 for a Torres Strait Islander reserve or for the benefit of Torres Strait Islander inhabitants; or (b) within the external boundaries of an area of such land and— (i) subject to a lease granted under the Land Holding Act; or (ii) the subject of an application under the Land Holding Act, section 5, that had been approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act, but for which a lease under that Act has not been granted; and includes land reserved and set apart under the Land Act 1962 for any other public purpose if the Minister declares the land to be land that was, or included land that was, at the beginning of the enactment day, being used as a Torres Strait Islander reserve or for the benefit of Torres Strait Islanders. (2) Also, Torres Strait Islander reserve land includes land within the external boundaries of land mentioned in subsection (1)(a) if— (a) the land was the subject of an application under the Land Holding Act, section 5, that was approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act after the enactment day; and (b) a lease under that Act has not been granted for the land. (3) Further, Torres Strait Islander reserve land includes land within the external boundaries of land mentioned in subsection (1)(a) if the land has, since the enactment day, ceased to be a road. (4) Torres Strait Islander reserve land does not include land within the external boundaries of land mentioned in subsection (1)(a) if the land has, since the enactment day, become a road. Division 4 Declarations about particular transferable land 12 Definition for div 4 In this division— relevant land means the following land, or a part of the land— (a) DOGIT land; (b) Torres Strait Islander reserve land, other than land declared by the Minister for section 11. 13 Particular land may be declared to be not transferable land (1) The Minister may, by gazette notice, make a declaration that relevant land is not transferable land if the Minister is satisfied that— (a) housing or essential or other infrastructure is situated on the land; or (b) the land is being used as a town site or part of a town site; or (c) the land is being used as if it were a road; or (d) having regard to the nature or use of the land, it is not appropriate or practicable in the circumstances for the land to be granted in fee simple under this Act. (2) In considering whether to make a declaration under subsection (1)(d), the Minister may have regard to matters relating to the nature or use of the relevant land the Minister considers appropriate, including, for example— (a) whether the land is likely to be used as a town site or part of a town site; and (b) whether the land is in a condition suitable to be granted under this Act. (3) The Minister must not make a declaration under subsection (1)(d) before— (a) if no appeal is made to the Land Court against the decision to make the declaration—the period for making an appeal ends; or (b) if an appeal is made to the Land Court against the decision to make the declaration—the day the appeal is finally decided. 13E [Repealed] 13F [Repealed] 14 Notice of intention to make declaration (1) If the Minister intends to make a declaration under section 13, the Minister must— (a) give notice of the Minister's intention to make the declaration to the trustee of the relevant land; and (b) as soon as practicable after giving the notice under paragraph (a), publish notice of the Minister's intention to make the declaration in a newspaper or other publication circulating generally in the area where the relevant land is situated; and (c) consider all representations made under subsection (4). (2) The notice must— (a) include a description of the relevant land; and (b) state the following— (i) the reasons for the proposed declaration; (ii) that a person may make written representations to the Minister about the proposed declaration; (iii) the place where the representations may be made; (iv) the period in which the representations must be made. (3) The stated period must end at least 28 days after the notice is published. (4) A person may make written representations about the proposed declaration to the Minister within the stated period. 15 Minister to consider representations and give notice of decision (1) After considering all representations made under section 14(4) about the proposed declaration, the Minister must— (a) decide whether to make the declaration; and (b) give notice of the decision to— (i) each person who made the representations; and (ii) the trustee of the relevant land, if the trustee did not make any representations. (2) The Minister may, after considering the representations, decide to make the declaration for all or a part of the relevant land described in the notice under section 14. (3) If the Minister decides to make the declaration, the notice must— (a) include a description of the relevant land to be declared not transferable under this division; and (b) state all of the following— (i) the provision under which the declaration is to be made; (ii) the reasons for the decision; (iii) if the Minister is to make the declaration under section 13(1)(d)—that a person who made representations about the proposed declaration may appeal against the decision to the Land Court within 28 days after receiving the notice, and how the person may appeal. 16 Notice about declarations—trustee As soon as practicable after a declaration that relevant land is not transferable land is made, the chief executive must give the trustee of the land notice of the declaration. 17 Notice about declarations—registrar (1) As soon as practicable after a declaration that relevant land is not transferable land is made, the chief executive must give the registrar notice of the declaration. (2) The notice must include particulars of the land the subject of the declaration. (3) The registrar must keep records that show the land is not transferable land. (4) The registrar must keep the records in a way that a search of the appropriate register kept by the registrar will show the land is not transferable land. (5) As soon as practicable after a declaration is repealed— (a) the chief executive must give the registrar notice of the fact; and (b) the registrar must amend the registrar's records to show the land the subject of the repealed declaration is transferable land. 18 Requirements about plans of subdivision for declarations (1) This section applies if— (a) under section 13, the Minister declares land is not transferable land; and (b) a plan of subdivision is lodged for the land under the Land Title Act or Land Act for the purpose of identifying the land; and (c) the plan of subdivision has been consented to by the Minister. (2) The registrar must register the plan of subdivision without the consent of anyone whose consent would otherwise have been required under the relevant section if the plan otherwise complies with the relevant section. (3) In this section— relevant section means— (a) for freehold land—the Land Title Act, section 50; or (b) for other land—the Land Act, section 290J. Division 5 Available State land 19 Land that is available State land—general (1) Land is available State land if it is— (a) land, other than excluded land, in which no person other than the State has an interest; or (b) land, other than excluded land, that is subject to an interest issued by the State, if an available State land agreement is in force for the land. (2) Subsection (1) is subject to sections 21 and 22. (3) In this section— interest means a legal or equitable interest in the land but does not include native title, a mining interest or an easement. 20 Agreement about particular land (1) The Minister may enter into a written agreement (an available State land agreement) about land, other than excluded land— (a) with a person who has an interest in the land granted by the State; and (b) under which the State and the person agree that the land may be available State land. (2) The Minister may enter into an available State land agreement for particular land only if satisfied that entering into the agreement is appropriate in the circumstances having regard to an evaluation of the land under the Land Act, section 16. (3) An available State land agreement must provide that on the grant of the land under part 4 the person's interest in the land is to cease and a new interest granted by the trustee of the land is to have effect in substitution for the person's interest. (4) However, if the interest is a lease granted under the Land Act, the agreement may provide that the interest is to continue in force under section 41. (5) Subsection (6) applies if a proposed available State land agreement is to state that a person's interest in land is to cease and a new interest granted by the proposed trustee of the land is to have effect in substitution for the person's interest. (6) To remove any doubt, it is declared that the Minister need not enter into the available State land agreement unless satisfied a new interest granted by the proposed trustee of the land is to have effect in substitution for the person's interest in the land. 21 Watercourses and lakes Available State land includes a watercourse or lake only to the extent the watercourse or lake is— (a) within the external boundaries of land that is otherwise available State land; and (b) capable of being owned in fee simple by a person other than the State. 22 Tidal land (1) Available State land includes tidal land only if the Minister declares the particular tidal land to be available State land. (2) Subject to subsection (1), this Act applies to tidal land as if it were not tidal land. 23 Meaning of city or town land (1) Subject to subsection (2), city or town land is land that is within the boundaries of a city or town constituted under the Local Government Act 2009. (2) The Minister may declare a change to the boundaries of a city or town. (3) A declaration under subsection (2) has effect only for this Act. 24 Meaning of township land A regulation may declare that land is township land for this Act. 25 National parks To allay any doubt, it is declared that available State land includes any national park. 26 Land that is not available State land (1) To remove any doubt, it is declared that the following land is not available State land— (a) the waters of the sea, and the seabed, other than tidal land declared to be available State land under section 22(1); (b) freehold land; (c) land subject to a lease, licence or permit under the Land Act. (2) Despite subsection (1)(c), land subject to a lease, licence or permit under the Land Act is available State land if an available State land agreement is in force for the land. 26A [Repealed] 27 Torres Strait area (1) The Torres Strait area is— (a) the area the boundaries of which are described in the Torres Strait Treaty, annex 9; and (b) any other area declared by regulation to be included in the Torres Strait area. (2) An area declared under subsection (1)(b) may be described in any way. Division 6 Application of laws to Torres Strait Islander land 28 Application of laws (1) To allay any doubt, it is declared that, except as provided by this Act or any other Act, the laws of the State apply to Torres Strait Islander land, persons and things on Torres Strait Islander land, and acts and things done on Torres Strait Islander land, to the same extent, and in the same way, as if the land were not Torres Strait Islander land. (2) Without limiting subsection (1), to allay any doubt it is declared that this Act has effect subject to the following Acts— (a) Fisheries Act 1994; (b) Torres Strait Fisheries Act 1984. Part 2A Providing freehold Division 1 Preliminary 28A Overview This part— (a) allows available land to be granted in freehold under the Land Act to an eligible person for the available land; and (b) requires— (i) the trustee of freehold option land to consult on and make a freehold instrument; and (ii) the local government for the area in which the land is situated to attach the freehold instrument to its planning scheme; and (c) sets out how, and to whom, the trustee may allocate available land depending on whether the person is an eligible person. Division 2 Basic concepts 28B Definitions for pt 2A In this part— allocation method, for available land, means— (a) the auction, ballot or tender to be used to allocate the available land; and (b) the conditions of the auction, ballot or tender. allocation notice see section 28Z(1)(a). allocation process, for available land, means— (a) if there is an interest holder for the available land—the process stated in division 5; or (b) otherwise—the process stated in division 6. appeal period, for available land, means the period starting on the day a person receives an information notice in relation to the available land and ending— (a) if no notice of appeal is filed in relation to the available land—on the last day for making an appeal; or (b) if a notice of appeal is filed in relation to the available land—when the appeal is finally decided. available land see section 28D(3). closing day for division 6, see section 28ZA(1)(d). eligibility criteria see section 28D(6)(a). eligible person, for available land, means a person who meets the eligibility criteria for the land and is— (a) a Torres Strait Islander or Aboriginal person; or (b) the spouse or former spouse of— (i) a person mentioned in paragraph (a); or (ii) a Torres Strait Islander or Aboriginal person who is deceased. freehold instrument means a freehold schedule and the freehold policy for the freehold schedule. freehold option land means land in an indigenous local government's area if— (a) any of the following entities are the trustee of the land— (i) an indigenous local government; (ii) a land trust; (iii) another entity holding the land under this Act; and (b) the land is in an urban area. freehold policy, for a freehold schedule, see section 28D(5). freehold schedule— (a) means a schedule made as mentioned in section 28D(1) by the trustee of freehold option land; and (b) includes a model freehold schedule. indigenous local government see the Local Government Act 2009, schedule 4. interest holder, for available land, means a person who holds any of the following interests in the land— (a) a registered lease granted under this Act or the Land Act, other than a townsite lease; (b) a lease entitlement under the new Land Holding Act; (c) a 1985 Act granted lease or a new Act granted lease under the new Land Holding Act; (d) a registered sublease, including a registered sublease of a townsite lease; (e) a residential tenancy agreement for a social housing dwelling situated on the available land; (f) a right to occupy or use the available land under section 148. model freehold instrument, for division 4, subdivision 2, see section 28F. model freehold schedule see section 28D(4). native title holder has the same meaning as it has in the Commonwealth Native Title Act. offer means an offer to an eligible person by a trustee to allocate available land to the person under section 28T. planning scheme means a planning scheme under the Planning Act 2016. probity advisor see section 28ZB(1). urban area means an area identified as an area intended for either urban purposes or future urban purposes on a map in a planning scheme used to show zones. urban purposes means purposes for which land is used in cities or towns, including residential, industrial, sporting, recreation and commercial purposes. Division 3 Approval for grant of available land 28C Approval for grant of available land (1) The trustee of freehold option land may apply to the chief executive, in the approved form, for available land to be granted in fee simple under the Land Act to the eligible person who has been allocated the available land under this part. (2) The trustee may make the application only if— (a) there is a freehold instrument for the available land; and (b) the trustee has followed the allocation process for the available land. (3) Information in the application must, if the approved form requires, be verified by a statutory declaration. (4) In deciding the application, the chief executive— (a) must be reasonably satisfied— (i) agreements or arrangements appropriate to granting the available land as freehold have been entered into or are in place, including, for example, in relation to the following— (A) native title; (B) any social housing dwelling on the available land; (C) road access to the available land; and (ii) there is a lot on plan description for the available land; and (iii) if the available land is allocated under section 28ZF—a probity advisor has certified the probity of the allocation process for the available land; and (b) may consider any other matter the chief executive reasonably considers relevant. (5) If the chief executive approves the application, the Governor in Council may grant the land in fee simple under the Land Act. Note— See the Land Act, section 14. Division 4 Freehold instruments Subdivision 1 Trustee may make freehold instrument 28D Trustee may make freehold instrument (1) The trustee of freehold option land may, by resolution, make a schedule identifying the freehold option land available to be granted in freehold. (2) The freehold schedule must identify the freehold option land so the boundaries of the land are capable of being decided. (3) Freehold option land identified in a freehold schedule is available land. (4) A freehold schedule that only identifies freehold option land of a type prescribed by regulation for this subsection is a model freehold schedule. (5) If the trustee makes a freehold schedule, the trustee must, by resolution, make a policy (a freehold policy) at the same time to help the trustee in implementing the freehold schedule. (6) The freehold policy must be in the approved form and state— (a) the criteria (the eligibility criteria) for participating in the allocation process for available land; and (b) if there is no interest holder for available land—the allocation method for available land; and (c) the sale price of available land and the costs to be recovered from the sale price; and (d) the sale price of available land and the costs to be recovered from the sale price; and (e) how the trustee will deal with interests in, or in relation to, available land, before it is allocated; and (f) the social and financial implications for the community in providing freehold; and (g) the social and financial implications for any eligible person who is granted freehold; and (h) the potential to attract investment and new members into the community; and (i) any other matter prescribed by regulation. 28E Trustee may have only 1 freehold instrument (1) The trustee of freehold option land may have only 1 freehold instrument for the land. (2) However, if the trustee is an indigenous regional council, the trustee may have more than 1 freehold instrument only if the freehold instruments do not overlap in relation to available land. (3) In this section— indigenous regional council see the Local Government Act 2009, schedule 4. Subdivision 2 Making, amending or repealing freehold instruments 28F Definition for sdiv 2 In this subdivision— model freehold instrument means a model freehold schedule and the freehold policy for the model freehold schedule. 28G Application of sdiv 2 This subdivision states how a freehold instrument may be made, amended or repealed. 28H Minister to make and publish guideline (1) The Minister must make, and publish on the department's website, a guideline about the process for— (a) attaching a freehold instrument to a local government's planning scheme; and (b) amending or repealing a freehold instrument. (2) The guideline must make provision for the local government to do all of the following things before attaching a freehold instrument to its planning scheme— (a) publish a notice about the freehold instrument in a newspaper or other publication circulating generally in the local government's area at least once; (b) carry out public consultation about the freehold instrument; (c) give the Minister a notice summarising the matters raised during the public consultation and stating how the local government or the trustee dealt with the matters. 28l Trustee to consult (1) Before the trustee of freehold option land starts the process for making a freehold instrument in relation to freehold option land, the trustee must decide on the way (the decided way) in which the trustee will consult about the making of the freehold instrument. Note— See section 135. (2) The purpose of the consultation is to enable the trustee to be reasonably satisfied it is appropriate for the freehold option land to be granted in freehold. (3) The decided way must— (a) require the trustee to consult with the native title holders for the freehold option land proposed to be included in the freehold schedule; and (b) include how the trustee will notify the community about the freehold instrument; and (c) allow a suitable and sufficient opportunity for each person the trustee consults to express their views about the freehold instrument. (4) The trustee must— (a) consult on the freehold instrument in the decided way; and (b) keep records about the consultation showing the consultation was consistent with the decided way. 28J Trustee to give freehold instrument to Minister or local government (1) This section applies if, after consulting on a proposed freehold instrument, the trustee decides to continue to make a freehold instrument (2) The trustee must— (a) for a model freehold instrument—give the model freehold instrument to the Minister for approval; or (b) otherwise—ask, by notice, the local government for the area in which the proposed freehold option land is situated to attach the freehold instrument to the local government's planning scheme. (3) In this section— proposed freehold option land means freehold option land proposed to be included in a freehold schedule 28K Local government to follow process in guideline (1) This section applies if a local government receives a notice under section 28J(2)(b) in relation to a freehold instrument. (2) The local government must follow the process stated in the guideline made by the Minister under section 28H. (3) After the process is completed, the local government must give the freehold instrument to the Minister for approval. 28L Minister may approve (1) If the Minister is given a freehold instrument for approval, the Minister may— (a) approve the freehold instrument; or (b) approve the freehold instrument on the condition the trustee or local government for the available land amends the freehold instrument in the way the Minister directs; or (c) refuse to approve the freehold instrument. (2) In making a decision under subsection (1) about a freehold instrument, other than a model freehold instrument, the Minister must have regard to information given to the Minister by the local government for the freehold instrument after the local government has completed the process under section 28K. (3) The Minister may approve a freehold instrument if reasonably satisfied— (a) for a model freehold instrument—the model freehold schedule only includes freehold option land of a type prescribed by regulation for section 28D(4); and (b) the trustee has consulted with the native title holders for the freehold option land proposed to be included in the freehold schedule; and (c) the consultation was consistent with the way decided by the trustee under section 28I. (4) The Minister must give notice of the decision under subsection (1) to the trustee and the local government for the freehold instrument. (5) If the Minister approves a freehold instrument, the local government must— (a) attach the freehold instrument to its planning scheme; and (b) publish, in a newspaper or other publication circulating generally in the local government's area at least once, a notice stating the freehold instrument is approved and attached to its planning scheme. 28M Amending or repealing freehold instrument A freehold instrument attached to a local government's planning scheme may be amended or repealed by a trustee only by following the process stated in the guideline made by the Minister under section 28H. Subdivision 3 Other provisions about freehold instruments 28N Effect of freehold instrument A freehold instrument has effect on and after the day the local government for the area in which the available land is situated attaches the freehold instrument to the local government's planning scheme. 28O Relationship with planning scheme (1) Attaching a freehold instrument to a planning scheme is not an amendment of the planning scheme. (2) A freehold instrument attached to a planning scheme— (a) does not form part of the planning scheme; and (b) is the responsibility of the trustee for the available land; and (c) if the planning scheme is amended or repealed and remade (with or without modification)—may be attached without amendment by the local government to the amended or remade planning scheme. Division 5 Allocation process for available land—interest holder 28P Application of div 5 This division states the allocation process for available land if there is an interest holder for the available land. 28Q Application for available land A person who is an eligible person and an interest holder for available land may apply, in the approved form, to the trustee of the land for the land to be granted to the person. 28R Dwelling on available land (1) This section applies if a dwelling is situated on available land the subject of the application. (2) The trustee must give notice about the application to the housing chief executive. (3) Within 28 days after receiving the notice, the housing chief executive must give the trustee a notice (a dwelling notice) stating whether— (a) the dwelling is a social housing dwelling; and (b) if the dwelling is a social housing dwelling—the housing chief executive consents to the applicant making the application. (4) In deciding whether to consent to the applicant making the application, the housing chief executive must have regard to whether it would be more appropriate in the circumstances for the dwelling to continue to be social housing. (5) If the dwelling notice states the housing chief executive consents to the applicant making the application, the trustee must decide the price of the dwelling— (a) by agreement with the housing chief executive; or (b) by using a methodology agreed between the trustee and the housing chief executive. (6) The housing chief executive must, if asked, give a person a copy of the methodology. 28S Decision on application (1) The trustee must consider the application and decide to approve or refuse the application. (2) However, if a dwelling is situated on the available land the subject of the application, the trustee— (a) must not decide the application until the trustee receives a notice from the housing chief executive under section 28R(3); and (b) must refuse the application if the notice states the dwelling is a social housing dwelling and the housing chief executive does not consent to the applicant making the application. (3) The trustee may approve the application only if the trustee is reasonably satisfied— (a) the applicant is an eligible person for the available land the subject of the application; and (b) if there is more than 1 interest holder for the available land and all interest holders are eligible persons, either— (i) all interest holders for the available land have made the application; or (ii) all interest holders for the available land have consented to the applicant making the application; and (c) if there is more than 1 interest holder for the available land and paragraph (b) does not apply—all interest holders for the available land have consented to the applicant making the application; and (d) if there is a mortgage over the available land—the mortgagee has consented to the applicant making the application. (4) If the trustee is reasonably satisfied of the matters mentioned in subsection (3), the trustee must approve the application. (5) If the trustee decides to refuse the application, the trustee must give the applicant an information notice for the decision. 28T Offer to allocate available land (1) If the trustee approves the eligible person's application, the trustee must offer, in writing, to allocate the available land to the eligible person. (2) However, the trustee may make the offer only after the appeal period for the available land. (3) If there is a social housing dwelling on the available land, the trustee must make the offer subject to a condition that the eligible person must purchase the dwelling at the price decided under section 28R(5). (4) The trustee may make the offer subject to any other conditions the trustee reasonably considers necessary. (5) In deciding whether to impose conditions on the offer under subsection (4), the trustee must have regard to the freehold instrument. (6) If the trustee decides to impose conditions on the offer, other than a condition mentioned in subsection (3), the trustee must give the eligible person an information notice for the decision. (7) The trustee must give notice to the chief executive in the approved form about the offer. 28U Acceptance and refusal of offer (1) On receipt of the trustee's offer, the eligible person may accept or refuse the offer by notice given to the trustee. (2) However, if the eligible person does not give notice to the trustee within 45 days after the eligible person receives the offer, the eligible person is taken to have refused the offer. (3) If the eligible person refuses the offer, the trustee must give notice about the refusal to the chief executive. 28V Cooling-off period to apply to acceptance (1) A cooling-off period, for accepting an offer, is a period of 5 business days— (a) starting on the day the eligible person gives notice about accepting the offer to the trustee; and (b) ending at 5p.m. on the fifth business day after the day mentioned in paragraph (a). (2) An eligible person who accepts, or proposes to accept, an offer may give written notice to the trustee— (a) waiving the cooling-off period for accepting the offer; or (b) shortening the cooling-off period for accepting the offer. (3) An eligible person who has not waived the cooling-off period for accepting an offer may rescind or revoke the acceptance by giving a signed notice of rescission or revocation to the trustee at any time during— (a) the cooling-off period; or (b) if the period has been shortened under subsection (2)(b), the shortened period. (4) If the acceptance is rescinded or revoked under subsection (3), the trustee must, within 14 days, refund any deposit paid under the acceptance to the eligible person. (5) An amount payable to the eligible person under subsection (4) is recoverable from the trustee as a debt. 28W When offer ends An offer ends when the first of the following happens— (a) the eligible person refuses the offer under section 28U; (b) the eligible person gives notice of rescission or revocation of acceptance to the trustee under section 28V; (c) the eligible person dies; (d) the eligible person is no longer an interest holder for the available land; (e) if the offer includes a condition about when the offer ends—the day the offer ends under the condition. 28X Allocation of available land to eligible person (1) After complying with all conditions of the offer, the eligible person must give notice to the trustee. (2) If, after receiving the notice, the trustee is reasonably satisfied the eligible person has complied with all conditions of the offer, the trustee must allocate the available land to the eligible person. Note— Available land may be granted in freehold to an eligible person who is allocated the available land. See section 28C. Division 6 Allocation process for available land if no interest holder 28Y Application of div 6 This division states the allocation process for available land if there is no interest holder for the available land. Note— A freehold instrument states the allocation method for available land. See section 28D(6). 28Z Public notice of intention to allocate available land (1) Before allocating available land, the trustee of the available land must publish notice of the trustee's intention to allocate the available land— (a) by gazette notice (the allocation notice); and (b) in a newspaper or other publication circulating generally in the area in which the land is situated at least once. (2) The trustee may act under subsection (1) only if— (a) there is a lot on plan description for the available land; and (b) there is dedicated access to the available land; and (c) native title over the available land has been, or will be, surrendered or extinguished; and (d) the trustee has given notice to the chief executive about the trustee's intention to allocate the available land. 28ZA Information to be included in allocation notice (1) The allocation notice must include the following information for the available land— (a) the eligibility criteria; (b) the allocation method; (c) the conditions applying to an offer of the available land; (d) the day (the closing day) applications to participate in the allocation process close; (e) the time and place for making applications; (f) the reserve or purchase price; (g) the deposit, if any, to be paid to participate in the allocation process and the proposed date, time and place for payment of the deposit; (h) the proposed date, time and place where the available land will be allocated; Note— After the appeal period for the available land, the trustee must give notice of the date, time and place where the available land will be allocated. See section 28ZD. (i) the name and contact details of the probity advisor appointed. (2) The closing day must be at least 30 days after the allocation notice is gazetted. 28ZB Probity advisor (1) The trustee must appoint an appropriately qualified and independent person (a probity advisor) to ensure the probity of the allocation process for the available land. (2) The probity advisor must— (a) monitor the allocation process for the available land; and (b) advise the trustee on matters relating to the probity of the allocation process; and (c) prepare and give to the trustee a report about the probity of the allocation process and, if reasonably satisfied the allocation process was undertaken correctly, certify that fact. 28ZC Decision on application to participate in allocation process (1) As soon as practicable after the closing day, the trustee must decide whether each applicant is an eligible person for the available land and give each applicant a notice about the decision. (2) If the trustee decides an applicant is an eligible person for the available land, the trustee must allow the applicant to participate in the allocation process for the available land. (3) If the trustee decides an applicant is not an eligible person for the available land, the trustee— (a) must give the applicant an information notice for the decision; and (b) must not allow the applicant to participate in the allocation process for the available land. 28ZD Notice of allocation of available land (1) After the appeal period for the available land, the trustee must give each applicant who is able to participate in the allocation process for the available land a notice stating— (a) the date, time and place where the available land will be allocated (the allocation date); and (b) if the allocation notice requires a deposit to be paid—the date by which the deposit must be paid; and (c) the applicant must give notice to the trustee before the allocation date if the applicant no longer wishes to participate in the allocation process. (2) The date mentioned in subsection (1)(b) must be— (a) at least 30 days after the notice under this section is given; and (b) before the allocation date. (3) If the applicant does not pay the deposit by the date mentioned in subsection (1)(b), the applicant must not participate in the allocation process. 28ZE How and when trustee may allocate The trustee may allocate the available land only— (a) after the end of the appeal period; and (b) by using the allocation method consistent with all of the following for the available land— (i) the freehold instrument; (ii) the allocation notice; (iii) the probity advisor's advice. 28ZF Allocation of available land The trustee must allocate the available land to the eligible person who is the winner under the allocation method used to allocate the available land. Note— Available land may be granted in freehold to an eligible person who is allocated the available land. See section 28C. 28ZG Deposits The trustee must refund the deposit of each unsuccessful applicant after the trustee allocates the available land. Division 7 Miscellaneous 28ZH Continuation of mortgages and easements A deed of grant for available land approved to be granted in fee simple under section 28C is subject to all registered mortgages and easements to which the available land was subject immediately before it was granted, and in the same priorities. 28ZI Cancellation of deeds of grant in trust, reserves etc. (1) This section applies if— (a) available land is subject to any of the following (each an old tenure) when the trustee for the land applies for the land to be granted in fee simple under section 28C— (i) a deed of grant in trust; (ii) a reserve dedicated under the Land Act; (iii) a townsite lease; (iv) an interest mentioned in section 28B, definition interest holder; and (b) a deed of grant in fee simple (a new tenure) for the available land is registered. (2) The old tenure is cancelled to the extent of the new tenure. Part 3 Formal expression of interest about land 29 Purpose of pt 3 The purpose of this part is to provide for a process under which Torres Strait Islanders may formally express an interest to the chief executive in having particular land made transferable land. 30 Land to which pt 3 applies This part applies to the following land— (a) available State land; (b) land dedicated as a reserve under the Land Act; (c) land subject to an occupation licence; (d) land held under a lease under the Land Act by or for Torres Strait Islanders. 31 Expression of interest in having land made transferable land (1) Torres Strait Islanders particularly concerned with land mentioned in section 30 may, by notice given to the chief executive (an expression of interest), express an interest in having the land made transferable land. (2) The expression of interest must— (a) be in the approved form; and (b) include the details required in the approved form to enable the chief executive to properly consider the expression of interest. 32 Chief executive to consider expression of interest (1) The chief executive must consider each expression of interest. (2) Without limiting subsection (1), the chief executive may consider an expression of interest by evaluating the land to which it relates under the Land Act, section 16. 33 Consideration of expression of interest does not impose obligation on State The chief executive's consideration of an expression of interest does not impose an obligation on the State under this Act to make the land to which it relates transferable land. Part 4 Grant of transferable land as Torres Strait Islander land Division 1 Grant of land 34 Deeds of grant to be prepared (1) The chief executive must prepare such deeds of grant in fee simple as the Minister considers necessary and directs over transferable lands. (2) Transferable land need not be surveyed but may be described in a deed of grant in such manner as the Minister directs. (3) The deed of grant must show that the land is held by the grantee— (a) if the grantee is a registered native title body corporate appointed as the grantee under section 35—for the native title holders of the land; or (b) otherwise—for the benefit of Torres Strait Islanders particularly concerned with the land and their ancestors and descendants. (4) If the grantee is a registered native title body corporate appointed under section 35, the deed of grant also must include information to identify the native title holders of the land. (5) Subsections (2), (3) and (4) have effect despite any other Act or any rule of law or practice. 35 Appointment of registered native title body corporate as grantee to hold land for native title holders (1) This section applies to transferable land if— (a) under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and (b) there is a registered native title body corporate for the determination. (2) The Minister may, with the consent of the registered native title body corporate, appoint the body corporate to be the grantee of the land under a deed of grant prepared under section 34. (3) If the Minister appoints the registered native title body corporate to be the grantee of the land under this section, the body corporate holds the land for the native title holders of the land the subject of the determination mentioned in subsection (1)(a). (4) In considering whether to appoint a registered native title body corporate under this section, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example— (a) whether the making of the proposed appointment was a matter relevant to the native title claim under the Commonwealth Native Title Act that resulted in the determination that native title existed in relation to all or a part of the land; and (b) whether any Torres Strait Islanders particularly concerned with the land, other than the native title holders of the land, may be adversely affected by the proposed appointment; and (c) if the Minister is satisfied Torres Strait Islanders particularly concerned with the land will be adversely affected by the proposed appointment—any action the registered native title body corporate intends to take to address the concerns of the Torres Strait Islanders. 36 Appointment of grantee to hold land for benefit of Torres Strait Islanders (1) This section applies if the Minister does not appoint, under section 35, a registered native title body corporate as the grantee of land. (2) The Minister may appoint as grantee of the land— (a) a CATSI corporation that is qualified to hold the land; or (b) a land trust. (3) However, the Minister may appoint a CATSI corporation that is a registered native title body corporate as the grantee of the land under subsection (2) only if— (a) under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land and the CATSI corporation is the registered native title body corporate for the determination; or (b) a determination has not been made under the Commonwealth Native Title Act that native title exists in relation to all or a part of the land, but the Minister is satisfied it is appropriate in all the circumstances to appoint the CATSI corporation as the grantee of the land. Examples of when it is appropriate to appoint the CATSI corporation as the grantee of the land— 1 The appointment of the CATSI corporation is supported by consultation with Torres Strait Islanders particularly concerned with the land. 2 The land is within the external boundaries of an area of land the subject of a native title determination and the CATSI corporation is the registered native title body corporate for the determination. 3 An ILUA has been entered into for the land and the CATSI corporation is nominated in the ILUA as the proposed grantee for the land under this Act. 4 Anthropological research supports the CATSI corporation as being the appropriate grantee. (4) Before making the appointment, the Minister must consult with, and consider the views of, Torres Strait Islanders particularly concerned with the land. (5) Subsection (4) does not apply if an ILUA has been entered into for the land and the entity is nominated in the ILUA as the proposed grantee for the land under this Act. (6) However, in considering whether to appoint an entity nominated in an ILUA as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example— (a) whether any Torres Strait Islanders particularly concerned with the land may be adversely affected by the appointment; and (b) if the Minister is satisfied any Torres Strait Islanders particularly concerned with the land will be adversely affected by the appointment—any action the entity intends to take to address the concerns of the Torres Strait Islanders. (7) Also, in considering whether to appoint a registered native title body corporate as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example, the matters mentioned in section 35(4)(b) and (c). (8) In appointing a grantee of land under this section, the Minister must have regard to any Island custom applicable to the land. 37 Procedure for appointing particular grantee (1) Before appointing a grantee of land under this part, other than an entity nominated in an ILUA as the proposed grantee for the land, the Minister must— (a) publish notice of the Minister's intention to appoint the grantee in a newspaper or other publication circulating generally in the area in which the land the subject of the deed of grant is situated; and (b) consider all representations made to the Minister under subsection (4). (2) The notice must— (a) include a description of the land; and (b) state the following— (i) the name of the proposed grantee; (ii) that a Torres Strait Islander particularly concerned with the land may make written representations to the Minister about the proposed appointment; (iii) the place where the representations may be made; (iv) the period in which the representations must be made. (3) The stated period must end at least 28 days after the notice is published. (4) A Torres Strait Islander particularly concerned with the land may make written representations about the proposed appointment to the Minister within the stated period. 37A [Repealed] 37B [Repealed] 37C [Repealed] 37D [Repealed] 37E [Repealed] 37F [Repealed] 37G [Repealed] 37H [Repealed] 37I [Repealed] 37J [Repealed] 37K [Repealed] 37L [Repealed] 37M [Repealed] 37N [Repealed] 37O [Repealed] 37P [Repealed] 37Q [Repealed] 37R [Repealed] 37S [Repealed] 37T [Repealed] 37U [Repealed] 37V [Repealed] 37W [Repealed] 37X [Repealed] 37Y [Repealed] 37Z [Repealed] 37ZA [Repealed] 37ZB [Repealed] 37ZC [Repealed] 37ZD [Repealed] 38 Minister to act as soon as possible (1) The Minister must, as soon as practicable after the commencement of sections 34 and 36, give all necessary directions under section 34, and make all necessary appointments under section 35 or 36, in relation to land that is transferable land on the enactment day. (2) If, under section 9(1)(c) or 11, land becomes transferable land after the enactment day, the Minister must, as soon as practicable after the land becomes transferable land, give all necessary directions under section 34, and make all necessary appointments under section 35 or 36, in relation to the land. (3) However, the Minister need not act as mentioned in subsections (1) and (2) in relation to land until the Minister is reasonably satisfied— (a) arrangements are in place to ensure— (i) the Commonwealth and the State can continue to provide services to communities on the land after it is granted; and (ii) the local government for the area in which the land is situated can continue to provide local government services to communities on the land after it is granted; and Example of an arrangement for paragraph (a)— a lease (b) if the land is proposed to be granted to an entity other than a registered native title body corporate, arrangements that the Minister considers necessary— (i) to support use of the land by Torres Strait Islanders particularly concerned with it; and (ii) to ensure appropriate services, including, for example, social housing, public works and community infrastructure, can be provided for communities on the land; are in place to deal with matters relevant to the use of the land after it is granted; and Example of an arrangement for paragraph (b)— an ILUA (c) if the land is or includes township land, arrangements are in place to provide for— (i) the township land to continue to be used as township land; and (ii) residents of the township land to continue to live on and access the land, and obtain tenure over the land under this Act. Examples of an arrangement for paragraph (c)— an ILUA, a townsite lease or another lease (4) In this section— local government services includes any services a local government might ordinarily provide for the community in its local government area. 39 Authority to grant fee simple in transferable land The Governor in Council may, under this Act and the Land Act, grant transferable land in fee simple. 40 Deed of grant takes effect on delivery (1) A deed of grant prepared under this division takes effect on the delivery of the deed to the grantee. (2) On delivery of the deed of grant to the grantee, the land the subject of the deed becomes Torres Strait Islander land that is transferred land. (3) Subsection (1) has effect despite any other Act or any rule of law or practice. 41 Existing interests (1) If transferable land was, immediately before becoming Torres Strait Islander land under this division, subject to an interest or benefited by an easement, the interest continues in force or the land continues to be benefited by the easement. (2) Without limiting subsection (1), if transferable land was, immediately before becoming Torres Strait Islander land under this division, the subject of— (a) a 1985 Act granted lease or a new Act granted lease under the new Land Holding Act; or (b) a lease under the Land Act; or (c) a trustee (Torres Strait Islander) lease; the trustee of the land is, by operation of this section, substituted for the lessor as a party to the lease. (3) The terms of a lease mentioned in subsection (2) are not affected by the operation of this section or any other provision of this Act and, for the purposes of those terms, the Land Act continues to apply to a lease under that Act, with all necessary modifications and such modifications as are prescribed, as if the lease continued to be such a lease and the trustee of the land were the lessor. (4) However, subsections (5) to (5B) apply if, under an available State land agreement— (a) an interest in transferable land (the previous interest) ends on the grant of the land under this part; and (b) a new interest granted by the trustee of the land is to have effect in substitution for the previous interest on the grant of the land. (5) Despite subsections (1) to (3), the previous interest ends on the grant of the land. (5A) However, if the previous interest was a lease under the Land Act (the previous lease) and the interest that is to have effect in substitution for the previous lease is a lease under the Land Title Act (the new lease)— (a) despite section 20(3) and the available State land agreement, the previous lease does not end until the new lease is registered in the freehold land register; and (b) the lessee of the new lease must lodge the new lease for registration in the freehold land register immediately after the grant of the land; and (c) if a sublease was in force under the previous lease immediately before the grant of the land, on the grant of the land the sublease continues under the new lease; and (d) subject to paragraph (e) and subsection (5B), the new lease must be registered in the freehold land register subject to the same encumbrances to which the previous lease was subject, and in the same priorities, as recorded in the appropriate register immediately before the grant of the land; and (e) any particulars recorded in the appropriate register for the previous lease immediately before the grant of the land must be recorded in the freehold land register for the land, to the extent the particulars are relevant to the land. (5B) If an easement that burdened the previous lease was in existence immediately before the grant of the land, on the grant of the land the easement— (a) continues in existence, despite the Land Act, section 372; and (b) burdens the land the subject of the new lease; and (c) is taken to have been registered under the Land Title Act, part 6, division 4. (6) Subsection (5) applies despite any other Act. (7) In this section— interest includes— (a) native title; and (b) a right of a local gov