Western Australian Consolidated Acts Western Australian Consolidated Acts1 This is a compilation of the Native Title (State
Provisions) Act 1999. The following table contains information about
that Act 1a.
|
Short title |
Number |
Assent |
Commencement |
|---|---|---|---|
|
Native Title (State Provisions) Act 1999
Pt. 1 and s. 2.2, 3.1, 7.1, 7.2 and 7.4 |
60 of 1999 |
10 Jan 2000 |
10 Jan 2000
(see s. 2(1)) |
1a On the date as at which this compilation was prepared,
provisions referred to in the following table had not come into operation and
were therefore not included in this compilation. For the text of the provisions
see the endnote referred to in the table.
Provisions
that have not come into operation
|
Short title |
Number and year |
Assent |
Commencement |
|---|---|---|---|
|
Native Title (State Provisions) Act 1999
Pt. 2 (except s. 2.2), Pt. 3 (except s. 3.1), Pt. 4-6 ,
s. 7.3 and Sch. 1 and 2 2 |
60 of 1999 (as amended by No. 59 of 2004 s. 141 cl.
107; No. 77 of 2006 s. 17) |
10 Jan 2000 |
Pt. 2 (except s. 2.2), Pt. 3 (except s. 3.1)
and Pt. 5 Div. 4 operative day to be determined under Commonwealth
Native Title Act 1993, s. 43A (see
s. 1.2(3)-(5)); |
2 On the date as at which this compilation was prepared, the
Native Title (State Provisions) Act 1999 Pt. 2 (except
s. 2.2), Pt. 3 (except s. 3.1) Pt. 4-6, s. 7.3 and Sch. 1
and 2 (as amended by the Courts Legislation Amendment and
Repeal Act 2004 s. 141 cl. 107) had not come into operation.
They read as follows:
“
Part 2 — Consultation procedures for
alternative provision areas
Division 1 — Preliminary
2.1. Definitions
In this Part —
alternative provision area has the meaning given by
section 43A(2) of the NTA except that it does not include —
(a) an area —
(i) that is covered by a grant for the benefit of Aboriginal persons;
and
(ii) over which all native title rights and interests have not been
extinguished; or
(b) an area that is unallocated Crown land within the meaning of the
Land Administration Act 1997 and is land —
(i) over which, under a written law relating to the administration of
Crown land —
(I) a non-exclusive pastoral lease was granted that continued in force
for not more than 2 years; and
(II) no other tenure has ever been granted; and
(ii) that has never been reserved under a written law referred to in
subparagraph (i);
grant for the benefit of Aboriginal persons means —
(a) a lease granted for a fixed term or in perpetuity for the use and
benefit of Aboriginal persons under —
(i) section 9 or 116 of the Land Act 1933; or
(ii) section 79 or 83 of the Land Administration
Act 1997;
or
(b) a reserve under section 29 of the Land Act 1933 or
section 41 of the Land Administration Act 1997 for the use and
benefit of Aboriginal persons where the land concerned is used for that
purpose.
2.3. Transitional provisions
The regulations may make transitional provisions, so far as the
legislative power of the Parliament permits, that are necessary or expedient to
be made in connection with the amendment or revocation of a determination
referred to in section 2.2.
2.4. Object of this Part
The object of this Part is to make provisions that —
(a) are alternative to those contained in Part 2 Division 3
Subdivision P of the NTA in relation to acts to which that Subdivision applies
that are attributable to the State; and
(b) are permitted by section 43A(1) of the NTA to have effect instead
of Subdivision P while a determination referred to in section 2.2 is in
force,
in relation to an area of land or waters that is an alternative provision
area.
Note: Part 2 Division 3 Subdivision P of the NTA
contains right to negotiate procedures in relation to some future acts. For an
overview of that Subdivision, see section 25 of the NTA.
Division 2 — Relevant future acts and their
validity
2.5. Acts to which this Part applies
(1) This Part applies to a future act (“a Part 2 act”)
done by the State that —
(a) is referred to in —
(i) section 26(1A)(a) and (c) of the NTA; or
(ii) section 26(1)(a) and (c) of the NTA;
(b) is not referred to in section 26(2) of the NTA; and
(c) subject to subsection (3), relates to any extent to an area of
land or waters that is an alternative provision area.
(2) This Part applies to an act only to the extent that the act relates to
a place that is on the landward side of the mean high-water mark of the sea.
(3) This Part does not apply to a compulsory acquisition that comes within
section 26(1)(c)(iii) of the NTA if it involves the acquisition of native
title rights and interests in relation to land or waters in both an alternative
provision area and an area that is not an alternative provision area.
(4) If by operation of section 43B of the NTA a future act is taken
to consist of 2 separate acts, this Part applies only to the separate act that
comes within paragraph(c)(i) of that section.
(5) This Part does not apply to an act in respect of which a determination
is made under section 2.7.
2.6. Circumstances in which act is not valid
(1) A Part 2 act is not valid to the extent that it affects native title
unless, before it is done, the requirements of one of the paragraphs of
subsection (2) are satisfied in respect of the act.
(2) The requirements are —
(a) no objection is lodged under section 2.16 before the close of
business on the last day for the lodgment of objections;
(b) after the last day for the lodgment of objections, but immediately
before the act is done, there is no —
(i) registered native title body corporate; or
(ii) registered native title claimant,
in relation to any part of the relevant land;
(c) all objections lodged under section 2.16 before the close of
business on the last day for the lodgment of objections are —
(i) withdrawn under section 2.25; or
(ii) dismissed under section 2.29;
(d) an agreement of the kind described in section 2.26 is made by the
consultation parties and given to the Commission under that section;
(e) a recommendation is made that the act be done, or be done subject to
conditions being complied with, and the recommendation —
(i) has not been overruled under section 2.38; and
(ii) is no longer capable of being overruled —
(I) because of section 2.38(2); or
(II) because the responsible Minister has given an instrument to the
Commission under section 2.44;
(f) a recommendation that the act not be done is overruled under
section 2.38; or
(g) a recommendation —
(i) that the act be done; or
(ii) that the act be done subject to conditions being complied with,
is overruled under section 2.38 and a determination is made under
that section that the act may be done subject to conditions being complied
with.
(3) In subsection (2) —
close of business means the close of business of the
Government party as specified in accordance with section 2.13(2)(f);
last day for the lodgment of objections —
(a) in relation to a person who has filed an application in terms of
section 2.18(3)(a) in relation to any part of the relevant land (a
pending application), means the day that is one month after the
closing day; and
(b) in relation to any other person, or if at the closing day there is no
pending application, means the closing day.
2.7. Part 3 may be applied to a Part 2 act
The Government party may, on the application of a person who has applied
for, or made a request or submission for, the doing of an act that would
otherwise come within section 2.5, determine that Part 2 is not to apply to
the act but that it is to be treated instead as a Part 3 act.
2.8. Other statutory requirements not affected
Nothing in section 2.6, or in an agreement, recommendation or
determination under this Part, authorizes the Government party to do a Part 2
act without complying with any requirements of another written law that apply to
the doing of the act.
Division 3 — Notices and objections
2.9. Proponent where act relates to mining
Where the Part 2 act, if done, would —
(a) create or vary a right to mine; or
(b) renew, re-grant, remake or extend the term of an instrument creating a
right to mine,
the proponent for the purposes of this Part is the person who under the
relevant written law has applied for the act to be done.
2.10. Identification of proponents in other cases
(1) This section applies where the Part 2 act is not covered by
section 2.9.
(2) The Government party is to determine the person or persons (if any)
who, because of an application, request or submission made by the person or
persons for the act to be done, are to be treated as the proponent or proponents
in relation to the act for the purposes of this Part.
(3) The Government party may amend a determination under
subsection (2).
(4) The Government party must give notice in writing to each proponent of
—
(a) a determination under subsection (2); and
(b) an amendment of a determination,
relating to that proponent.
(5) If there is any other consultation party in relation to the act at the
time when a notice is given under subsection (4) the Government party must
give the copy of the notice to each other consultation party.
2.11. Closing day for objections
(1) The Government party is to fix, for every Part 2 act, a closing day
for the lodgment of objections to the doing of the act.
(2) The Government party may fix a later closing day for the lodgment of
objections to the doing of a Part 2 act if the Government party is satisfied
that it has not been reasonably practicable for section 2.13(1) to be
complied with in respect of the act.
2.12. Notification of acts
(1) Before a Part 2 act is done, public notice of the act must be given by
advertisement in a newspaper circulating generally throughout the
State.
(2) Notice in writing of the act must also be given to —
(a) any registered native title body corporate in relation to any of the
relevant land;
(b) any registered native title claimant in relation to any of the
relevant land;
(c) any representative body for an area that includes any of the relevant
land; and
(d) the Native Title Registrar.
2.13. Further provision as to notices
(1) The notices required by section 2.12 in respect of a Part 2 act
must be given at least 3 months before the closing day.
(2) Every notice must show —
(a) a clear description of the land or waters to which the act
relates;
(b) a description of the nature of the act;
(c) the title of the Government party who —
(i) would do the act; and
(ii) will receive objections;
(d) the address at which objections may be lodged and the postal address
to which they may be sent;
(e) the closing day;
(f) the time of close of business of the Government party on the closing
day;
(g) the name and address of any person who is a proponent under
section 2.9 or is determined to be a proponent under
section 2.10(2);
(h) how further information about the act can be obtained; and
(i) any other information that is prescribed for the purposes of
section 2.15(1)(a).
(3) Every notice must also contain a statement explaining how
section 2.18(3) operates to allow a person time —
(a) to become a registered native title claimant in relation to the
relevant land; and
(b) by so doing to become eligible in terms of section 2.16(1)(b) to
lodge an objection to the doing of the act.
(4) The particulars referred to in subsection (2)(c), (d) and (f) are
to be as determined by the Government party.
2.14. Who gives notice
The notices required by section 2.12 are to be given by the
Government party.
2.15. Prescribed provisions about notice
(1) The regulations may make provision about the giving of notice under
this Division including about —
(a) the information that must be included in a notice; and
(b) how the requirement to give notice —
(i) may be satisfied either generally or in particular types of cases;
and
(ii) may be satisfied in conjunction with the giving of notice under
another written law that relates to a Part 2 act.
(2) Regulations of the kind referred to in subsection (1)(b)(ii) may
be expressed to be made under section 7.1 and under powers conferred by
another written law.
2.16. Right to object to doing of act
(1) A person that is, in relation to any part of the relevant land —
(a) a registered native title body corporate; or
(b) subject to subsection (3), a registered native title
claimant,
may lodge an objection to the doing of a Part 2 act.
(2) An objection may be lodged only on the ground that the doing of the
act in relation to the relevant land would affect the person’s registered
native title rights and interests in relation to that land.
(3) Subsection (1)(b) does not apply if there are one or more
registered native title bodies corporate in relation to all of the relevant
land.
2.17. Requirements for objections
(1) An objection must —
(a) be lodged with the Government party in accordance with the
requirements of the relevant notice;
(b) state the manner in which it is said that the doing of the act would
be likely to affect the objector’s registered native title rights and
interests in relation to the relevant land; and
(c) comply with any other requirements of the regulations as to the form
or content of objections.
(2) The objector must give a copy of the objection to any proponent in
relation to the act.
2.18. Time limit
(1) An objection against a Part 2 act cannot be lodged after the closing
day.
(2) Where, on the application of a person made before the closing day, the
Commission is satisfied that exceptional circumstances so require, the
Commission may —
(a) fix a later closing day for the lodgment of objections to the doing of
the act; and
(b) give such directions as the Commission thinks appropriate as to the
giving of notice of the day so fixed.
(3) If —
(a) on or before the closing day for a Part 2 act, a person files a native
title determination application under section 61 of the NTA; and
(b) within one month after the closing day the person becomes a registered
native title claimant,
in relation to any part of the relevant land, the person may, despite
subsection (1), lodge an objection to the doing of the act within the
period referred to in paragraph (b).
(4) A person who files an application referred to in subsection (3)
must, within 7 days of doing so, notify the Government party and any
proponent in writing of that fact.
2.19. Government party to notify the Commission of objections
(1) The Government party must notify —
(a) the Commission; and
(b) any proponent,
of the particulars of all objections against a Part 2 act lodged on or
before the closing day or in accordance with section 2.18(3).
(2) The Government party must also notify an objector of particulars of
all such objections lodged by other objectors.
(3) Notification under subsection (1) or (2) of an objection must be
given not later than 14 days after the lodgment of the objection.
2.20. Withdrawal of request etc. by proponent
(1) The proponent in relation to a Part 2 act may give notice in writing
to —
(a) the Commission;
(b) the other consultation parties (if any); and
(c) the Government party,
that the proponent’s application, request or submission for the
doing of the act is withdrawn.
(2) If there is more than one proponent a notice under subsection (1)
is of no effect unless it is given by all of the proponents jointly.
(3) The giving of a notice under subsection (1) to all of the persons
referred to in that subsection brings to an end any procedures that have begun
under this Part.
2.21. Withdrawal of proposal by Government party
(1) The application of section 2.20 extends to cases where —
(a) section 2.9 does not apply; and
(b) a proponent has not been determined under section 2.10(2).
(2) In that event —
(a) a notice may be given by the Government party that the act will not be
done; and
(b) the provisions of section 2.20 apply with all necessary
changes.
Division 4 — Consultation and agreements
2.22. Meaning of “consultation parties”
References in this Part to consultation parties in relation
to a Part 2 act are references to —
(a) each proponent under section 2.9 and each objector; or
(b) where section 2.9 does not apply —
(i) the Government party;
(ii) each objector; and
(iii) any person determined under section 2.10(2) to be a proponent
but only so long as the person consents to being a consultation party.
2.23. Consultation
(1) If a Part 2 act is a compulsory acquisition that comes within
section 26(1)(c)(iii) of the NTA, the consultation parties must consult
with each other in good faith about ways of minimizing the impact of the act on
registered native title rights and interests in relation to the relevant land
with a view to bringing about the withdrawal of the objections.
(2) In the case of any other Part 2 act, the consultation parties must
consult with each other in good faith about ways of minimizing the impact of the
act on registered native title rights and interests in relation to the relevant
land, including about —
(a) any access to the relevant land; or
(b) the way in which any thing authorized by the act may be
done,
with a view to bringing about the withdrawal of the objections.
(3) The consultation parties for the time being may begin consultations
even though the closing day for the act concerned has not arrived.
2.24. Involvement of Commission, including mediation
(1) If any of the consultation parties requests the Commission to do so,
the Commission must mediate among the parties to assist in resolving the
differences between them on the relevant matters mentioned in
section 2.23.
(2) The consultation parties must report to the Commission on progress
made in the consultations at such time or times as the Commission may in writing
direct.
(3) If the Commission considers that the consultation parties or any of
them are not making sufficient attempts to resolve their differences the
Commission is to use its best endeavours —
(a) to have the parties consult together in good faith as required by
section 2.23; and
(b) to bring about —
(i) a resolution of the differences between them on the relevant matters
mentioned in section 2.23; or
(ii) the withdrawal of the objections.
2.25. Withdrawal of objection
(1) At any time before a recommendation is made under Division 5 in
relation to an objection the objector may withdraw the objection by notice in
writing given to the Commission.
(2) The Commission is to notify the consultation parties of any such
withdrawal.
2.26. Agreement made by parties
If at any time before a recommendation is made under Division 5 the
consultation parties make an agreement that resolves the issues on which the
objections were based, they may give a copy of it to the Commission.
Division 5 — Recommendations of the Commission
2.27. Commission may notify intention to hear
(1) The Commission may, after the consultation period for a Part 2 act has
expired, give notice to the consultation parties that it intends to hear and
determine objections to the doing of the act —
(a) if —
(i) all of the objections have not been withdrawn; or
(ii) an agreement of the kind described in section 2.26 has not been
made between the consultation parties and given to the Commission under that
section;
and
(b) if the Commission considers that any mediation requested under
section 2.24(1) has been completed.
(2) A notice under subsection (1) in respect of a Part 2 act may be
given by the Commission —
(a) of its own motion; or
(b) on the application of a consultation party.
(3) Before the Commission gives a notice under subsection (1) of its
own motion, it must give the consultation parties an opportunity to inform it
whether the making of an agreement of the kind described in section 2.26 is
imminent.
(4) The Commission must grant an application made under
subsection (2)(b) if the application complies with section 2.46 and is
accompanied by the things required by section 2.47.
(5) Without limiting section 6.22, a notice under subsection (1)
may relate to more than one act and the objections to the doing of the
act.
(6) In this section —
consultation period means the period beginning on the
closing day and ending 4 months after that day.
2.28. Consultations may continue
Where the Commission —
(a) has given notice under section 2.27; but
(b) has not made a recommendation,
in respect of a Part 2 act, the consultation parties may continue to
consult together with a view to bringing about —
(c) a resolution of the issues on which the objections are based;
and
(d) the withdrawal of the objections.
2.29. Dismissal of objections
(1) The Commission must dismiss an objection if —
(a) it is not made by a registered native title body corporate or a
registered native title claimant as required by section 2.16(1);
or
(b) none of the rights and interests claimed to be affected by the doing
of the act are registered native title rights and interests of the
objector.
(2) The Commission must notify an objector of the dismissal of his or her
objection.
2.30. Time for making recommendation
(1) Subject to section 2.31, the Commission must take all reasonable
steps to make a recommendation in respect of a Part 2 act within the period of
4 months (the allowed period) starting when a notice under
section 2.27 is given in respect of the act.
(2) If it appears to the Commission that it will not make a recommendation
within the allowed period, the Commission may before the end of the period ask
the responsible Minister to extend the period, and that Minister may comply with
the request.
(3) An extended period may be further extended under
subsection (2).
2.31. No recommendation if agreement etc.
The Commission must not make a recommendation in respect of a Part 2 act
if —
(a) all of the objections to the doing of the act have been withdrawn;
or
(b) an agreement of the kind described in section 2.26 has been made
between the consultation parties and given to the Commission under that
section.
2.32. Making of recommendation
(1) Except where section 2.31 applies, the Commission must make one
of the following recommendations —
(a) that the act be done;
(b) that the act be done subject to specified conditions being complied
with by any of the consultation parties;
(c) that the act not be done.
(2) The Commission may specify conditions under subsection (1)(b)
only if they relate to the doing of the act as it affects registered native
title rights and interests in relation to the relevant land.
(3) The Commission must not specify a condition under
subsection (1)(b) that has the effect that an objector is to be entitled to
payments worked out by reference to —
(a) the amount of profits made;
(b) any income derived; or
(c) any things produced,
by any other consultation party as a result of doing anything in relation
to the relevant land after the act is done.
2.33. Criteria for making recommendations
(1) In making its recommendation in respect of any Part 2 act, the
Commission must —
(a) take into account the impact of the act on —
(i) the enjoyment by the objectors of registered native title rights and
interests; and
(ii) any area or site on the relevant land of particular significance to
the objectors in accordance with their traditions;
and
(b) unless it recommends that the act not be done, consider ways in which
that impact can be minimized.
(2) In addition, in making its recommendation in respect of a Part 2 act
that is not a compulsory acquisition that comes within
section 26(1)(c)(iii) of the NTA, the Commission must consider questions of
—
(a) access to the relevant land; and
(b) the way in which any thing authorized by the act may be
done.
(3) The Commission must also take into account the nature and extent of
—
(a) existing rights and interests that are not native title rights and
interests, in relation to the relevant land; and
(b) existing use of the relevant land by persons other than the
objectors.
(4) In taking into account the impact of the act as mentioned in
subsection (1) (a), and in considering the ways in which that impact can be
minimized as mentioned in subsection (1) (b), the Commission may take into
account the impact of the act on —
(a) the way of life, culture, traditions and economic interests of any of
the objectors;
(b) the freedom of access by any of the objectors to the relevant land;
and
(c) the carrying out by any of the objectors of rites, ceremonies or other
activities of cultural significance on the relevant land in accordance with
their traditions.
(5) Taking into account the effect of a Part 2 act on areas or sites
mentioned in subsection (1) (a) (ii) does not affect the operation of any
law of the Commonwealth or the State for the preservation or protection of those
areas or sites.
2.34. Issues on which parties agree
(1) Before making its recommendation, the Commission must ascertain
whether the consultation parties have an agreed position on any issues relevant
to its recommendation.
(2) If there is any such issue, and all of the consultation parties
consent, the Commission in making its recommendation —
(a) must take that agreed position into account; and
(b) need not take into account the matters mentioned in section 2.33,
to the extent that the matters relate to that issue.
2.35. Copy of recommendation to be given
The Commission must give a copy of any recommendation under
section 2.32 to the consultation parties and the responsible
Minister.
2.36. Effect of recommendation
A recommendation must be complied with by the Government party unless it
is overruled by a determination of the responsible Minister under
section 2.38.
2.37. Effect of recommendation that specifies conditions
(1) A recommendation by the Commission that a Part 2 act may be done
subject to conditions being complied with by the consultation parties has
effect, if the act is done, as if the conditions were terms of a contract among
the consultation parties.
(2) Subsection (1) is in addition to —
(a) the effect that the recommendation has under section 2.36;
and
(b) any condition that the Government party may impose in relation to the
act in order to give effect to the recommendation.
(3) If an objector is a registered native title claimant, any other person
included in the native title claim group concerned is taken to be a consultation
party for the purposes only of this section.
Division 6 — Overruling of recommendations
2.38. Responsible Minister may overrule a recommendation
(1) Subject to sections 2.40 and 2.41, the responsible Minister may,
by writing given to the Commission, make a determination in accordance with
section 2.39.
(2) A determination cannot be made by the responsible Minister in respect
of a recommendation after 2 months have expired since the recommendation
was made.
(3) The Commission must give a copy of the determination to the
consultation parties concerned.
2.39. Determinations that responsible Minister may make
(1) In the case of a recommendation under section 2.32(1)(a), the
responsible Minister may make a determination that the recommendation is
overruled and either —
(a) that the act to which it relates must not be done; or
(b) that the act to which it relates may be done subject to specified
conditions to be complied with by any of the consultation parties.
(2) In the case of a recommendation under section 2.32(1)(b), the
responsible Minister may make a determination that the recommendation is
overruled and —
(a) that the act to which it relates must not be done;
(b) that the act to which it relates may be done; or
(c) that the act to which it relates may be done subject to specified
conditions to be complied with by any of the consultation parties.
(3) In the case of a recommendation under section 2.32(1)(c), the
responsible Minister may make a determination that the recommendation is
overruled and either —
(a) that the act to which it relates may be done; or
(b) that the act to which it relates may be done subject to specified
conditions to be complied with by any of the consultation parties.
(4) The responsible Minister may only specify conditions under this
section that relate to the doing of the act as it affects registered native
title rights and interests in relation to the relevant land.
(5) In this section —
specified means specified in the determination.
2.40. Consultation before making of determination
(1) This section applies if the effect of the responsible Minister’s
determination under section 2.38 is that the act may be done —
(a) unconditionally;
(b) subject to conditions being complied with; or
(c) subject to conditions being complied with that are different in any
respect from the conditions specified in the recommendation that is
overruled.
(2) If this section applies, the responsible Minister may only make a
determination under section 2.38 after he or she has —
(a) consulted the State Minister principally responsible for indigenous
affairs about —
(i) the Commission’s recommendation; and
(ii) any determination that the responsible Minister may make;
and
(b) taken into account any recommendation or advice made or given by that
Minister.
(3) Before the consultations referred to in subsection (2) are held,
the State Minister principally responsible for indigenous affairs is to be given
—
(a) by the Commission, any submission or other material that was put
before it in relation to the recommendation in question; and
(b) by the responsible Minister, any submission or other material that has
been put before him or her for the purposes of the determination in
question.
(4) The duty imposed by subsection (3)(a) applies subject to any
direction given by the Commission under section 6.29.
2.41. Ground on which determination may be made
(1) The responsible Minister may only make a determination under
section 2.38 on the ground that it is in the interests of the State to do
so.
(2) In subsection (1) —
in the interests of the State includes —
(a) for the social or economic benefit of the State (including of
Aboriginal peoples); and
(b) in the interests of the relevant region or locality in the
State.
2.42. Conditions in determination
(1) A provision in a determination by the responsible Minister under
section 2.38 that a Part 2 act may be done subject to conditions being
complied with by any of the consultation parties has effect, if the act is done,
as if the conditions were terms of a contract among the consultation
parties.
(2) Subsection (1) is in addition to —
(a) the effect of the determination apart from this section; and
(b) any condition that the Government party may impose in relation to the
act in order to give effect to the determination.
(3) If an objector is a registered native title claimant, any other person
included in the native title claim group concerned is taken to be a consultation
party for the purposes only of this section.
2.43. Copy of determination to be laid before Parliament
(1) The responsible Minister must cause a copy of a determination under
section 2.38, together with reasons for the determination, to be laid
before each House of Parliament.
(2) Subsection (1) is to be complied with as soon as is practicable
after the determination is made and in any case, in relation to a House of
Parliament, within 15 sitting days of that House after the determination is
made.
2.44. Responsible Minister may declare intention not to overrule
(1) The responsible Minister may by instrument given to the Commission
declare that he or she does not intend to exercise any power conferred by
section 2.38 in respect of a particular recommendation.
(2) If an instrument is given to the Commission under subsection (1)
the responsible Minister —
(a) cannot revoke the instrument; and
(b) cannot exercise any power conferred by section 2.38 in respect of
the recommendation concerned.
(3) The Commission is to notify the consultation parties of the giving of
an instrument to it under subsection (1).
Division 7 — Applications
2.45. Definition
In this Division —
application means an application under
section 2.27(2)(b).
2.46. Form and contents of application
An application must —
(a) be made in accordance with the regulations; and
(b) comply with the requirements of the regulations as to the form or
content of applications.
2.47. Material and fees to accompany applications
An application must be accompanied by any prescribed documents and any
prescribed fee.
2.48. Application fee may be waived
The Chief Commissioner may waive payment of the whole or part of a fee
payable by a person under section 2.47 where —
(a) in the Chief Commissioner’s opinion, payment of the whole or
part of the fee would cause financial hardship to the person; or
(b) for any other reason the Chief Commissioner considers it appropriate
to do so.
Division 8 — Judicial review
2.49. Application for review
(1) A consultation party in relation to a Part 2 act may apply to the
Supreme Court for a review of a decision to which this section
applies.
(2) The decisions referred to are —
(a) a dismissal under section 2.29 of an objection to the doing of
the act;
(b) a recommendation of the Commission under section 2.32(1)(a) or
(b) in respect of the act; and
(c) a determination of the responsible Minister under section 2.38(1)
that the act —
(i) may be done; or
(ii) may be done subject to conditions.
2.50. Time limit for application
(1) An application for review must be made not later than 28 days
after the day on which —
(a) notice of the dismissal of the objection is given to the applicant;
or
(b) a copy of the determination is given to the applicant under
section 2.38(3),
as the case may be.
(2) In the case of a recommendation of the Commission, an application for
review must be made not later than 28 days after —
(a) the day on which the applicant is notified under section 2.44(3)
that the responsible Minister has given an instrument to the Commission under
section 2.44; or
(b) the expiry of the period referred to in
section 2.38(2),
whichever happens first.
2.51. Procedure
The manner of making the application and other matters relating to the
proceedings are to be as prescribed by rules of court.
2.52. Grounds on which application may be made
(1) An application for review may only be made on a ground or grounds that
would support an application for a remedy of —
(a) injunction;
(b) declaratory judgment; or
(c) an order in the nature of a prerogative writ.
(2) The application is not required to specify the kind of remedy that is
sought but is taken to be an application for the grant of such of the remedies
referred to in subsection (1) as the Court considers appropriate in the
circumstances.
2.53. Powers of Court
On the making of an application for review the Court may grant such
relief as it considers appropriate in the circumstances, including relief by way
of any of the remedies referred to in section 2.52(1).
2.54. Effect on other remedies
This Division displaces, in respect of a decision to which it applies,
the right of a consultation party to apply in other proceedings for relief of a
kind that is available under this Division.
Part 3 — Right to negotiate
procedures for areas not covered by Part 2
Division 1 — Preliminary
The regulations may make transitional provisions, so far as the
legislative power of the Parliament permits, that are necessary or expedient to
be made in connection with the amendment or revocation of a determination
referred to in section 3.1.
The object of this Part is to make provisions
that —
(a) are alternative to those contained in Part 2 Division 3
Subdivision P of the NTA; and
(b) are permitted by section 43(1) of the NTA to have effect instead
of Subdivision P while a determination referred to in section 3.1 is in
force,
in relation to acts to which that Subdivision applies that are
attributable to the State.
Note: Part 2 Division 3 Subdivision P of
the NTA contains right to negotiate procedures in relation to some future acts.
For an overview of that Subdivision, see section 25 of the NTA.
Division 2 — Relevant future acts and their
validity
3.4. Acts
to which this Part applies
(1) This Part applies to a future act (a Part 3 act) done by
the State that —
(a) is referred to in —
(i) section 26(1A)(a) and (c) of the NTA; or
(ii) section 26(1)(a) and (c) of the NTA;
(b) is not referred to in section 26(2) of the NTA; and
(c) subject to section 2.7, is not a Part 2 act.
(2) This Part applies to an act only to the extent that the act relates to
a place that is on the landward side of the mean high-water mark of the sea.
(3) If by operation of section 43B of the NTA a future act is taken
to consist of 2 separate acts —
(a) this Part applies only to the separate act that comes within
paragraph (c)(ii) of that section; and
(b) for the purposes of this Part that act is taken to be done at the time
provided for by paragraph (d) of that section.
3.5. Circumstances
in which act is not valid
(1) A Part 3 act is not valid to the extent that it affects native title
unless, before it is done, the requirements of one of the paragraphs of
subsection (2) are satisfied in respect of the act.
(2) The requirements are —
(a) no objection is lodged under section 3.15 before the close of
business on the last day of the objection period;
(b) after the objection period, but immediately before the act is done,
there is no —
(i) registered native title body corporate; or
(ii) registered native title claimant,
in relation to any part of the relevant land;
(c) all objections lodged under section 3.15 before the close of
business on the last day of the objection period are —
(i) withdrawn under section 3.24; or
(ii) dismissed under section 3.41;
(d) an agreement of the kind mentioned in section 3.22(1)
is —
(i) made by the negotiation parties;
(ii) given to the Commission under section 3.25; and
(iii) accepted by the Commission under section 3.26(2);
(e) a determination is made under section 3.29 that the act may be
done, or may be done subject to conditions being complied with;
(f) a determination is made under
section 3.44 that the act may be done, or may be done subject to conditions
being complied with, and the determination —
(i) has not been overruled under section 3.51; and
(ii) is no longer capable of being
overruled —
(I) because of section 3.51(2); or
(II) because the responsible Minister has given an instrument to the
Commission under section 3.56;
(g) a determination that the act must not be done is declared to be
overruled under section 3.51; or
(h) a determination under
section 3.44 —
(i) that the act may be done; or
(ii) that the act may be done subject to conditions being complied with,
is overruled under section 3.51 and a declaration is made under that
section that the act may be done subject to conditions being complied
with.
(3) In subsection (2) —
close of business means the close of business of the
Government party as specified in accordance with
section 3.11(2)(f);
objection period, in relation to a Part 3 act, means the
period beginning when any notice of the act is given under section 3.10 and
ending with the day that is one month after the closing day in relation to the
act.
(4) The term “objection period” is defined in
subsection (3) to extend beyond the closing day in relation to a Part 3 act
to allow for cases where section 3.17(3) applies, and the definition is not
to be read as in any way limiting the operation of
section 3.17(1).
3.6. Other
statutory requirements not affected
Nothing in section 2.7 or 3.5, or in an agreement, determination or
declaration under this Part, authorizes the Government party to do a Part 3 act
without complying with any requirements of another written law that apply to the
doing of the act.
Division 3
— Notices and objections
3.7. Proponent
where act relates to mining
Where the Part 3 act, if done, would —
(a) create or vary a right to mine; or
(b) renew, re-grant, remake or extend the term of an instrument creating a
right to mine,
the proponent for the purposes of this Part is the person who under the
relevant written law has applied for the act to be done.
3.8. Identification
of proponents in other cases
(1) This section applies where the Part 3 act is not covered by
section 3.7.
(2) The Government party is to determine the person or persons
(if any) who, because of an application, request or submission made by the
person or persons for the act to be done, are to be treated as the proponent or
proponents in relation to the act for the purposes of this Part.
(3) The Government party may amend a
determination under subsection (2).
(4) The Government party must give notice in writing to each proponent
of —
(a) a determination under subsection (2); and
(b) any amendment of a determination,
relating to that proponent.
(5) If there is any other negotiation party in relation to the act at the
time when a notice is given under subsection (4) the Government party must
give the copy of the notice to each other negotiation party.
3.9. Closing
day for objections
(1) The Government party is to fix, for every Part 3 act, a closing day
for the lodgment of objections to the doing of the act.
(2) The Government party may fix a later closing day for the lodgment of
objections to the doing of a Part 3 act if the Government party is satisfied
that it has not been reasonably practicable for section 3.11(1) to be
complied with in respect of the act.
(1) Before a Part 3 act is done, public notice of the act must be given by
advertisement —
(a) in a newspaper circulating generally throughout the State; and
(b) in a newspaper or magazine that —
(i) caters mainly or exclusively for the interests of Aboriginal
peoples;
(ii) circulates in the area that may be affected by the act; and
(iii) is published at least once a month.
(2) Notice in writing of the act must also be given
to —
(a) any registered native title body corporate in relation to any of the
relevant land;
(b) any registered native title claimant in relation to any of the
relevant land;
(c) any representative body for an area that includes any of the relevant
land; and
(d) the Native Title Registrar.
3.11. Further
provision as to notices
(1) The notices required by section 3.10 in respect of a Part 3 act
must be given at least 3 months before the closing day.
(a) a clear description of the land or waters to which the act
relates;
(b) a description of the nature of the act;
(c) the title of the Government party who —
(i) would do the act; and
(ii) will receive objections;
(d) the address at which objections may be lodged and the postal address
to which they may be sent;
(e) the closing day;
(f) the time of close of business of the Government party on the closing
day and on the day that is one month after that day;
(g) the name and address of any person who is
a proponent under section 3.7 or is determined to be a proponent under
section 3.8(2);
(h) how further information about the act can be obtained; and
(i) any other information that is prescribed for the purposes of
section 3.14(1)(a).
(3) Every notice must also contain a statement explaining how
section 3.17(3) operates to allow a person time —
(a) to become a registered native title claimant in relation to the
relevant land; and
(b) by so doing to become eligible in terms of section 3.15(1)(b) to
lodge an objection to the doing of the act.
(4) The particulars referred to in subsection (2)(c), (d) and (f) are
to be as determined by the Government party.
3.12. Notice
may relate to 2 or more acts
One notice may relate to the doing of 2 or more Part 3 acts.
The notices required by section 3.10 are to be given by the
Government party.
3.14. Prescribed
provisions about notice
(1) The regulations may make provision about the giving of notice under
this Division including about —
(a) the information that must be included in a notice; and
(b) how the requirement to give
notice —
(i) may be satisfied either generally or in particular types of cases;
and
(ii) may be satisfied in conjunction with the giving of notice under
another written law that relates to a Part 3 act.
(2) Regulations of the kind referred to in subsection (1)(b)(ii) may
be expressed to be made under section 7.1 and under powers conferred by
another written law.
3.15. Right
to object to doing of act
(1) A person that is, in relation to any part of the relevant
land —
(a) a registered native title body corporate; or
(b) subject to subsection (2), a registered native title
claimant,
may lodge an objection to the doing of a Part 3 act.
(2) Subsection (1)(b) does not apply if there are one or more
registered native title bodies corporate in relation to all of the relevant
land.
3.16. Requirements
for objections
(1) An objection must —
(a) be lodged with the Government party in accordance with the
requirements of the relevant notice;
(b) state the manner in which it is said that the doing of the act would
be likely to affect the objector’s registered native title rights and
interests in relation to the relevant land; and
(c) comply with any other requirements of the regulations as to the form
or content of objections.
(2) The objector must give a copy of the objection to any proponent in
relation to the act.
(1) An objection to the doing of a Part 3 act cannot be lodged after the
closing day.
(2) Where, on the application of a person made before the closing day, the
Commission is satisfied that exceptional circumstances so require, the
Commission may —
(a) fix a later closing day for the lodgment
of objections to the doing of the act; and
(b) give such directions as the Commission thinks appropriate as to the
giving of notice of the day so fixed.
(3) If —
(a) on or before the closing day for a Part 3
act, a person files a native title determination application under
section 61 of the NTA; and
(b) within one month after the closing day the person becomes a registered
native title claimant,
in relation to any part of the relevant land,
the person may, despite subsection (1), lodge an objection to the doing of
the act within the period referred to in paragraph (b).
(4) A person who files an application referred to in subsection (3)
must, within 7 days of doing so, notify the Government party and any
proponent in writing of that fact.
3.18. Government
party to notify the Commission of objections
(1) The Government party must notify —
(a) the Commission; and
(b) any proponent,
of the particulars of all objections lodged on or before the closing day
or in accordance with section 3.17(3).
(2) The Government party must also notify an objector of particulars of
all such objections lodged by other objectors.
(3) Notification under subsection (1) or (2) of an objection must be
given not later than 14 days after the lodgment of the objection.
3.19. Withdrawal
of request etc. by proponent
(1) The proponent in relation to a Part 3 act may give notice in writing
to —
(a) the Commission;
(b) the other negotiation parties (if any); and
(c) the Government party,
that the proponent’s request, application or submission for the
doing of the act is withdrawn.
(2) If there is more than one proponent a notice under subsection (1)
is of no effect unless it is given by all of the proponents jointly.
(3) The giving of a notice under subsection (1) to all of the persons
referred to in that subsection brings to an end any procedures that have begun
under this Part.
3.20. Withdrawal
of proposal by Government party
(1) The application of section 3.19 extends to cases
where —
(a) section 3.7 does not apply;
and
(b) a proponent has not been determined under section 3.8.
(a) a notice may be given by the Government party that the act will not be
done; and
(b) the provisions of section 3.19 apply with all necessary
changes.
Division 4
— Negotiations and agreements
3.21. Meaning
of “negotiation parties”
(1) References in this Part to negotiation parties in
relation to a Part 3 act are references —
(a) where section 3.7 applies, to —
(i) each proponent under that section;
(ii) each objector; and
(iii) to the extent provided for by subsection (3), the Government
party;
or
(b) where section 3.7 does not apply, to —
(i) the Government party;
(ii) each objector; and
(iii) any person determined under section 3.8(2) to be a proponent
but only so long as the person consents to being a negotiation party.
(2) Where section 3.7 applies to a Part 3 act, a proponent under that
section or an objector may in writing —
(a) at any time request the Government party to be a negotiation party; or
(b) request the Government party to be no longer a negotiation
party,
in relation to that act.
(3) So long as —
(a) a request by a proponent or objector under subsection (2)(a) has
effect; and
(b) there has been no request by the same proponent or objector under
subsection (2)(b),
the Government party is a negotiation party in relation to the act
concerned.
(1) The negotiation parties must negotiate in good faith with a view
to —
(a) the objections to the doing of the act
being withdrawn; or
(b) obtaining the agreement of the objectors
to —
(i) the doing of the act; or
(ii) the doing of the act subject to conditions to be complied with by any
of the negotiation parties.
(2) For the purposes of subsection (1), the other negotiation parties
must give the objectors an opportunity to state, either orally or in writing,
their views regarding the doing of the act.
(3) Without limiting the scope of any negotiations, they may, if relevant,
include the possibility of there being a condition that has the effect that the
objectors are to be entitled to payments worked out by reference to —
(a) the amount of profits made;
(b) any income derived; or
(c) any things produced,
by any other negotiation party as a result of doing anything in relation
to the relevant land after the act is done.
(4) Without limiting the scope of any negotiations, the nature and extent
of the following may be taken into account —
(a) existing rights and interests in relation to the relevant land that
are not registered native title rights and interests;
(b) existing use of the relevant land by persons other than the objectors;
and
(c) the practical effect of the exercise of —
(i) those existing rights and interests; and
(ii) that existing use,
on the exercise of any registered native title rights and interests in
relation to the relevant land.
(5) The fact that a negotiation party refuses or fails to negotiate as
mentioned in subsection (1) about matters unrelated to the effect of the
act on the registered native title rights and interests of the objectors, does
not mean that the negotiation party has not negotiated in good faith for the
purposes of that subsection.
(6) The negotiation parties for the time being may begin negotiations even
though the closing day in relation to the act concerned has not
arrived.
3.23. Involvement
of Commission, including mediation
(1) If any of the negotiation parties requests the Commission to do so,
the Commission must mediate among the parties to assist in resolving the
differences between them.
(2) The negotiation parties must report to the
Commission on progress made in the negotiations at such time or times as the
Commission may in writing direct.
(3) If the Commission considers that the negotiation parties or any of
them are not making sufficient attempts to reach an agreement the Commission is
to use its best endeavours to have the parties negotiate as required by
section 3.22(1).
(1) At any time before a determination is made under Division 5 in
relation to an objection the objector may withdraw the objection by notice in
writing given to the Commission.
(2) The Commission is to notify the negotiation parties of any such
withdrawal.
3.25. Agreement
made by parties
If at any time before any determination is made under Division 5 the
negotiation parties make an agreement of the kind mentioned in
section 3.22(1), they may give a copy of it to the Commission.
3.26. Commission’s
function in respect of an agreement
(1) This section applies only if the Government party is not a negotiation
party.
(2) Where a copy of an agreement is given to the Commission under
section 3.25 it is to consider the agreement and
either —
(a) accept the agreement if the Commission is
satisfied as to the matters set out in subsection (3); or
(b) decline to accept the agreement if it is not so satisfied.
(3) The matters as to which the Commission is to be satisfied are
that —
(a) the negotiation parties have made the agreement;
(b) the agreement has been properly executed; and
(c) no party has alleged, and proved to the Commission, that the party did
not freely and voluntarily enter into the agreement.
(4) If the Commission accepts the agreement it is
to —
(a) give notice in writing of that fact to the parties and to the
Government party; and
(b) give the Government party a copy of the agreement.
3.27. Effect
of conditional agreement
(1) An agreement that a Part 3 act may be done subject to conditions being
complied with by the negotiation parties has effect —
(a) if a copy of the agreement is given to the Commission under
section 3.25 and is accepted by the Commission under section 3.26(2);
and
(b) if the act is done,
as if the conditions were terms of a contract among the negotiation
parties.
(2) Subsection (1) is in addition to —
(a) any other effect that the agreement may have apart from this section;
and
(b) any condition that the Government party may impose in relation to the
act in order to give effect to the agreement.
(3) If an objector is a registered native title claimant, any other person
included in the native title claim group concerned is taken to be a negotiation
party for the purposes only of this section.
Division 5 — Determinations
Subdivision 1 — Ministerial determination
where Commission determination unreasonably delayed
3.28. Responsible
Minister may give Commission notice as to urgency
(1) At any time later than 4 months after the Commission has given a
notice under section 3.39 in respect of a Part 3 act and before
either —
(a) an agreement of the kind mentioned in section 3.22(1) has
been —
(i) made by the negotiation parties;
(ii) given to the Commission under section 3.25; and
(iii) accepted by the Commission under section 3.26(2);
or
(b) the Commission has made a determination under
section 3.44,
the responsible Minister may give a written
notice to the Commission requesting it to make such a determination within the
period specified in the notice.
(2) The period must end at a time later than 6 months after the
notice under section 3.39 was given.
3.29. Responsible
Minister may make determination
(1) The responsible Minister may, subject to section 3.30, make a
determination in respect of a Part 3 act if —
(a) the Commission has not made a determination in respect of the act
within the period specified in a notice under section 3.28;
(b) all objections to the doing of the act
lodged under section 3.15 have not been —
(i) withdrawn under section 3.24; or
(ii) dismissed under section 3.41;
(c) no agreement of the kind mentioned in section 3.22(1) has
been —
(i) made in relation to the act;
(ii) given to the Commission under section 3.25; and
(iii) accepted by the Commission under section 3.26(2);
and
(d) the responsible Minister has complied with the requirements of
sections 3.31, 3.32 and 3.33.
(2) The determinations that the responsible Minister may make
are —
(a) a determination that the act may be done;
(b) a determination that the act must not be done; or
(c) a determination that the act may be done subject to conditions to be
complied with by any of the negotiation parties.
(3) A determination must be made by the responsible Minister
personally.
3.30. Grounds
for making determination
(1) The responsible Minister may only make a determination under
section 3.29 if he or she considers that —
(a) the Commission is unlikely to make its determination within a period
that is reasonable having regard to all the circumstances; and
(b) it is in the interests of the State to make the determination at the
time.
(2) Subsection (1) does not prevent the responsible Minister from
having regard to other matters in deciding whether to make a determination.
3.31. Consultation
with Commonwealth Minister
The responsible Minister may only make a determination of the kind
described in section 3.29(2)(a) or (c) after he or she has consulted the
Commonwealth Minister about the determination.
3.32. Notice
and submissions etc.
(1) Before making a determination under section 3.29, the responsible
Minister must give notice in accordance with this section.
(2) The responsible Minister must give written notice to the Commission
requiring it, by the end of the day specified in the notice, to give
to —
(a) the Minister; and
(b) each negotiation party,
a summary of material that has been presented to the Commission in the
course of the Commission considering whether to make a determination under
section 3.44 in respect of the act concerned.
(3) The responsible Minister must give written notice to each negotiation
party that the Minister is considering making the determination and that each
negotiation party —
(a) may, by the end of the day specified in the notice, give the Minister
any submission or other material that the negotiation party wants the Minister
to take into account in deciding whether to make the determination and, if so,
its terms;
(b) if the negotiation party does so, must also give each of the other
negotiation parties a copy of the submission or other material; and
(c) may, within 7 days after the specified day, in response to any
submission or other material given by —
(i) any other negotiation party; or
(ii) the Commission,
give the Minister any further submission or other material that the
negotiation party wants the Minister to take into account as mentioned in
paragraph (a).
(4) The day specified under subsection (2) or (3)
must —
(a) be the same in all of the notices given under the subsections;
and
(b) be a day by which, in the responsible Minister’s opinion, it is
reasonable to assume that all of the notices so
given —
(i) will have been received by; or
(ii) will otherwise have come to the attention of,
the persons who must be so notified.
(5) If the responsible Minister complies with this section, there is no
requirement for any person to be given any further hearing before the
responsible Minister makes the determination.
3.33. Material
etc. taken into account
In making the determination, the responsible
Minister —
(a) must take into account —
(i) any submission or material provided by any of the negotiation parties
in accordance with subsection (3) of section 3.32, but only if the
negotiation party has complied with the requirements of paragraph (b) of
that subsection;
(ii) any report provided by the Commission;
and
(iii) any consultations with the Commonwealth Minister under
section 3.31;
(b) may, but need not, take into account any other matter or
thing.
3.34. Minister’s
power not limited
The fact that no submission or other material of the kind mentioned in
section 3.32 has been given to the Minister before the end of the day
specified in the notice does not prevent the Minister from making the
determination.
3.35. No
duty to make determination
(1) The responsible Minister does not have a duty to make a determination
under section 3.29.
(a) the giving of any notice by the Minister;
(b) the giving of any submission or other material to the
Minister;
(c) any request by a negotiation party for the responsible Minister to
make the determination; and
(d) any other circumstance.
3.36. Conditions
to have contractual effect
(1) Any provision in a determination under section 3.29 that the act
may be done subject to conditions being complied with by any of the negotiation
parties has effect, if the act is done, as if the conditions were terms of a
contract among the negotiation parties.
(2) Subsection (1) is in addition to —
(a) the effect that the determination has apart from this section;
and
(b) any condition that the Government party may impose in relation to the
act in order to give effect to the determination.
(3) If an objector is a registered native title claimant, any other person
included in the native title claim group concerned is taken to be a negotiation
party for the purposes only of this section.
3.37. Copy
of determination to be given
The responsible Minister must give a copy of any determination under
section 3.29 to the negotiation parties and the Commission.
3.38. Copy
of determination to be laid before Parliament
(1) The responsible Minister must cause a copy of a determination under
section 3.29, together with reasons for the determination, to be laid
before each House of Parliament.
(2) Subsection (1) is to be complied with as soon as is practicable
after the determination is made and in any case, in relation to a House of
Parliament, within 15 sitting days of that House after the determination is
made.
Subdivision 2 — Determination by
Commission
3.39. Commission
may notify intention to hear
(1) The Commission may give notice to the negotiation parties that it
intends to hear and determine objections to the doing of a Part 3
act —
(a) if —
(i) an agreement of the kind mentioned in section 3.22(1) has not
been —
(I) made by the negotiation parties;
(II) given to the Commission under section 3.25; and
(III) accepted by the Commission under section 3.26(2);
or
(ii) all objections to the doing of the act have not been withdrawn;
and
(b) if the Commission considers that any mediation requested under
section 3.23(1) has been completed.
(2) A notice under subsection (1) in respect of a Part 3 act may be
given by the Commission —
(a) of its own motion, but only after the expiry of the negotiation
period; or
(b) on the application of a negotiation party made after the expiry of
that period.
(3) Before the Commission gives a notice under subsection (1) of its
own motion, it must give the negotiation parties an opportunity to inform it
whether the making of an agreement of the kind mentioned in section 3.22(1)
is imminent.
(4) The Commission must grant an application made under
subsection (2)(b) if —
(a) a determination has not been made under section 3.29;
(i) complies with section 3.58; and
(ii) is accompanied by the things required by
section 3.59;
and
(c) the applicant has not been shown to be at fault.
(5) For the purposes of subsection (4)(c), an applicant is shown to
be at fault if another negotiation party alleges to the Commission, and proves
to its satisfaction, that the applicant did not negotiate in good faith as
required by section 3.22(1).
(6) Without limiting section 6.22, a notice under subsection (1)
may relate to more than one act and the objections to the doing of the
act.
negotiation period means the period beginning on the closing
day and ending 4 months after that day.
3.40. Negotiations
may continue
Where the Commission —
(a) has given notice under section 3.39; but
(b) has not made a determination,
in respect of a Part 3 act, the negotiation parties may continue to
negotiate with a view to —
(c) bringing about an agreement of the kind mentioned in
section 3.22(1); or
(d) the withdrawal of the objections.
(1) The Commission must dismiss an objection
if —
(a) it is not made by a registered native title body corporate or a
registered native title claimant as required by section 3.15; or
(b) none of the rights and interests claimed to be affected by the doing
of the act are registered native title rights and interests of the
objector.
(2) The Commission must notify an objector of the dismissal of his or her
objection.
3.42. Time
for making determination
(1) The Commission must take all reasonable steps to make a determination
under section 3.44 in respect of a Part 3 act within the period of
6 months (the allowed period)
starting when a notice under section 3.39 is given in respect of the
act.
(2) If it appears to the Commission that it
will not make a determination within the allowed period, the Commission may,
before the end of the period, ask the responsible Minister to extend the period,
and that Minister may comply with the request.
(3) An extended period may be further extended under
subsection (2).
(4) The Commission must not make a determination after the end of the
allowed period or any extended period.
(5) Nothing in subsection (2) or (3) affects the operation of
Subdivision 1.
3.43. No
determination if agreement etc.
The Commission must not make a determination in respect of a Part 3 act
if —
(a) all of the objections to the doing of the act have been withdrawn;
(b) an agreement of the kind mentioned in section 3.22(1) has
been —
(i) made by the negotiation parties;
(ii) given to the Commission under section 3.25; and
(iii) accepted by the Commission under
section 3.26(2);
or
(c) a determination has been made under section 3.29.
(1) Subject to section 3.43, the Commission must make one of the
following determinations —
(a) a determination that the act may be done;
(b) a determination that the act may be done subject to conditions
specified in the determination to be complied with by any of the negotiation
parties;
(c) a determination that the act must not be done.
(2) The Commission may specify conditions under subsection (1)(b)
only if they relate to the doing of the act as it affects registered native
title rights and interests in relation to the relevant land.
(3) The Commission must not determine a condition under
subsection (1)(b) that has the effect that an objector is to be entitled to
payments worked out by reference to —
(a) the amount of profits made;
(b) any income derived; or
(c) any things produced,
by any other negotiation party as a result of doing anything in relation
to the relevant land after the act is done.
3.45. Criteria
for making determinations
(1) In making its determination in respect of a Part 3 act, the Commission
must take into account the following —
(a) the effect of the act on —
(i) the enjoyment by the objectors of their registered native title rights
and interests;
(ii) the way of life, culture and traditions of any of the
objectors;
(iii) the development of the social, cultural and economic structures of
any of the objectors;
(iv) the freedom of access by any of the objectors to the relevant land
and their freedom to carry out rites, ceremonies or other activities of cultural
significance on the relevant land in accordance with their traditions;
and
(v) any area or site on the relevant land of particular significance to
the objectors in accordance with their traditions;
(b) the interests, proposals, opinions or wishes of the objectors in
relation to the management, use or control of the relevant land in relation to
which there are registered native title rights and interests of the objectors
that will be affected by the act;
(c) the economic or other significance of the act
to —
(i) Australia;
(ii) this State;
(iii) the area in which the relevant land is located; and
(iv) Aboriginal peoples who live in that area;
(d) any public interest in the doing of the act; and
(e) any other matter that the Commission considers relevant.
(2) While taking into account the effect of a Part 3 act as mentioned in
subsection (1)(a), the Commission must also take into account the nature
and extent of —
(a) existing rights and interests that are not native title rights and
interests, in relation to the relevant land; and
(b) existing use of the relevant land by persons other than the
objectors.
(3) Taking into account the effect of a Part 3 act on areas or sites
mentioned in subsection (1)(a)(v) does not affect the operation of any law
of the Commonwealth or the State for the preservation or protection of those
areas or sites.
3.46. Issues
on which parties agree
(1) Before making its determination, the Commission must ascertain whether
the negotiation parties have an agreed position on any issues relevant to its
determination.
(2) If there is any such issue, and all of the negotiation parties
consent, the Commission in making its determination —
(a) must take that agreed position into account; and
(b) need not take into account the matters mentioned in section 3.45
to the extent that the matters relate to that issue.
3.47. Determination
may provide for issues to be resolved later
(1) A determination may, with the consent of the negotiation parties,
provide that a particular matter that —
(a) is not reasonably capable of being determined when the determination
is made; and
(b) is not directly relevant to the doing of the act,
is to be the subject of further negotiations or to be determined in a
specified manner.
(2) If —
(a) the manner specified is arbitration by some person or body other than
the Commission; and
(b) the negotiation parties do not agree about the manner in which the
arbitration is to take place,
the Commission must determine the matter at an appropriate
time.
3.48. No
reopening of certain issues previously decided
(1) If —
(a) the Commission is making a determination in respect of a Part 3 act
consisting of the creation of a right to mine in relation to an area;
and
(b) an agreement or a determination involving the same negotiation parties
was previously made in respect of a future act consisting of the creation of a
right to mine in relation to the same area; and
(c) an issue was decided in the agreement or during the proceedings before
the Commission or an arbitral body,
the negotiation parties must not, without leave of the Commission, seek
to vary the decision on the issue.
(2) In subsection (1) —
agreement means an agreement of the kind mentioned in
section 3.22(1) that is given to the Commission under section 3.25 and
accepted by it under section 3.26(2);
determination means a determination
by —
(a) the Commission under this Part; or
(b) an arbitral body under the relevant provisions of the NTA;
relevant provisions of the NTA means the following
provisions of Division 3 of Part 2 of the NTA —
(a) Subdivision B of that Division as in force immediately before the
commencement of item 9 of Schedule 1 to the Native Title Amendment
Act 1998 of the Commonwealth; and
(b) Subdivision P of that Division.
3.49. Copy
of determination to be given
The Commission must give a copy of any determination under
section 3.44 to the negotiation parties and the responsible
Minister.
3.50. Effect
of conditional determination
(1) A determination by the Commission that a Part 3 act may be done
subject to conditions being complied with by the negotiation parties has effect,
if the act is done, as if the conditions were terms of a contract among the
negotiation parties.
(2) Subsection (1) is in addition to —
(a) the effect that the determination has apart from this section;
and
(b) any condition that the Government party may impose in relation to
the act in order to give effect to the determination.
(3) If an objector is a registered native title claimant, any other person
included in the native title claim group concerned is taken to be a negotiation
party for the purposes only of this section.
Division 6 — Overruling of Commission’s
determination
3.51. Responsible
Minister may overrule
(1) Subject to section 3.53, the responsible Minister may, by writing
given to the Commission, make a declaration in accordance with
section 3.52.
(2) A declaration cannot be made by the responsible Minister in respect of
a determination after 2 months have expired since the determination was
made.
(3) The Commission must give a copy of the declaration to the negotiation
parties concerned.
3.52. Declarations
that responsible Minister may make
(1) In the case of a determination under section 3.44(1)(a), the
responsible Minister may make a declaration that the determination is overruled
and a declaration either —
(a) that the act to which it relates must not be done; or
(b) that the act to which it relates may be done subject to specified
conditions to be complied with by any of the negotiation parties.
(2) In the case of a determination under section 3.44(1)(b), the
responsible Minister may make a declaration that the determination is overruled
and a declaration —
(a) that the act to which it relates must not be done;
(b) that the act to which it relates may be done; or
(c) that the act to which it relates may be done subject to specified
conditions to be complied with by any of the negotiation parties.
(3) In the case of a determination under
section 3.44(1)(c), the responsible Minister may make a declaration that
the determination is overruled and a declaration
either —
(a) that the act to which it relates may be done; or
(b) that the act to which it relates may be done subject to specified
conditions to be complied with by any of the negotiation parties.
(4) The responsible Minister may only specify conditions under this
section that relate to the doing of the act as it affects registered native
title rights and interests in relation to the relevant land.
(5) In this section —
specified means specified in the declaration.
3.53. Grounds
on which declaration may be made
The responsible Minister may only make a declaration under
section 3.51 on the grounds that it is in the interests of the State, or in
the national interest, to do so.
3.54. Conditions
in declaration
(1) A provision in a declaration by the responsible Minister under
section 3.51 that a Part 3 act may be done subject to conditions being
complied with by any of the negotiation parties has effect, if the act is done,
as if the conditions were terms of a contract among the negotiation
parties.
(2) Subsection (1) is in addition to the —
(a) effect that the declaration has apart from this section; and
(b) any condition that the Government party may impose in relation to the
act in order to give effect to the declaration.
(3) If an objector is a registered native title claimant, any other person
included in the native title claim group concerned is taken to be a negotiation
party for the purposes only of this section.
3.55. Copy
of declaration to be laid before Parliament
(1) The responsible Minister must cause a copy of a declaration under
section 3.51, together with reasons for the declaration, to be laid before
each House of Parliament.
(2) Subsection (1) is to be complied with as soon as is practicable
after the declaration is made and in any case, in relation to a House of
Parliament, within 15 sitting days of that House after the declaration is
made.
3.56. Responsible Minister may
declare intention not to overrule
(1) The responsible Minister may by instrument given to the Commission
declare that he or she does not intend to exercise any power conferred by
section 3.51 in respect of a particular determination.
(2) If an instrument is given to the Commission under subsection (1)
the responsible Minister —
(a) cannot revoke the instrument; and
(b) cannot exercise any power conferred by section 3.51 in respect of
the determination in question.
(3) The Commission is to notify the
negotiation parties of the giving of an instrument to it under
subsection (1).
Division 7 — Applications
In this Division —
application means an application under
section 3.39(2)(b).
3.58. Form
and contents of application
An application must —
(a) be made in accordance with the regulations; and
(b) comply with the requirements of the regulations as to the form or
content of applications.
3.59. Material
and fees to accompany applications
An application must be accompanied by any prescribed documents and any
prescribed fee.
3.60. Application
fee may be waived
The Chief Commissioner may waive payment of the whole or part of a fee
payable by a person under section 3.59 where —
(a) in the Chief Commissioner’s opinion, payment of the whole or
part of the fee would cause financial hardship to the person; or
(b) for any other reason the Chief Commissioner considers it appropriate
to do so.
Part 4 — Consultation procedures for
acts to which section 24MD(6B) of the NTA applies
Division 1 — Preliminary
The object of this Part is to make provisions
that —
(a) supplement, so far as the legislative power of the Parliament permits,
the provisions of subsection (6B) of section 24MD of the NTA;
and
(b) meet the State’s obligation under paragraph (f) of that
subsection to ensure that objections to which that subsection applies are heard
by an independent person or body.
4.2. Acts
to which this Part applies
This Part applies to a future act (a Part 4 act) done by
the State that consists of —
(a) a permissible lease etc. renewal that comes within
section 24ID(4)(a) and (b) of the NTA;
(b) a compulsory acquisition to which section 24MD(6B)(a) of the NTA
applies; or
(c) the creation or variation of a right to mine that is referred to in
section 24MD(6B)(b) of the NTA.
4.3. Requirements
to be satisfied before a Part 4 act is done
(1) Before a Part 4 act is done the requirements of one of the paragraphs
of subsection (2) must be satisfied in respect of the act.
(2) The requirements are —
(a) no objection is lodged under section 4.11 before the close of
business on the closing day;
(b) after the closing day, but immediately before the act is done, there
is no —
(i) registered native title body corporate; or
(ii) registered native title claimant,
in relation to any part of the relevant land;
(c) all objections lodged under section 4.11 before the close of
business on the closing day are —
(i) withdrawn under section 4.20;
or
(ii) dismissed under section 4.24;
(d) an agreement of the kind described in section 4.21 is made by the
consultation parties and given to the Commission under that section;
(e) a recommendation is made that the act be
done, or be done subject to conditions being complied with, and the
recommendation —
(i) has not been overruled under section 4.33; and
(ii) is no longer capable of being overruled —
(I) because of section 4.33(2); or
(II) because the responsible Minister has given an instrument to the
Commission under section 4.39;
(f) a recommendation that the act not be done is overruled under
section 4.33; or
(i) that the act be done; or
(ii) that the act be done subject to conditions being complied with,
is overruled under section 4.33 and a determination is made under
that section that the act may be done subject to conditions being complied
with.
(3) In subsection (2) —
close of business means the close of business of the
Government party as specified in accordance with
section 4.9(2)(f).
4.4. Other
statutory requirements not affected
Nothing in section 4.3, or in an agreement, recommendation or
determination under this Part, authorizes the Government party to do a Part 4
act without complying with any requirements of another written law that apply to
the doing of the act.
Division 2 — Notices and objections
4.5. Proponent
where act relates to mining
Where the Part 4 act, if done, would create or vary a right to mine, the
proponent for the purposes of this Part is the person who under the relevant
written law is the applicant for the right to mine or the variation.
4.6. Identification
of proponents in other cases
(1) This section applies where the Part 4 act is not covered by
section 4.5.
(2) The Government party is to determine the
person or persons (if any) who, because of an application, request or submission
made by the person or persons for the act to be done, are to be treated as the
proponent or proponents in relation to the act for the purposes of this
Part.
(3) The Government party may amend a
determination under subsection (2).
(4) The Government party must give notice in writing to each proponent
of —
(a) a determination under subsection (2); and
(b) any amendment of a determination,
relating to that proponent.
(5) If there is any other consultation party in relation to the act at the
time when a notice is given under subsection (4) the Government party must
give a copy of the notice to each other consultation party.
4.7. Closing
day for objections
(1) The Government party is to fix, for every Part 4 act, a closing day
for the lodgment of objections to the doing of the act.
(2) The Government party may fix a later closing day for the lodgment of
objections to the doing of a Part 4 act if the Government party is satisfied
that it has not been reasonably practicable for section 4.9(1) to be
complied with in respect of the act.
4.8. Notification
of acts by Government party
(1) Before a Part 4 act is done, the Government party must give public
notice of the act by advertisement in a newspaper circulating generally
throughout the State.
(2) The Government party must also give notice in writing of the act
to —
(a) any registered native title body corporate in relation to any of the
relevant land;
(b) any registered native title claimant in relation to any of the
relevant land; and
(c) any representative body for an area that includes any of the relevant
land.
4.9. Further
provision as to notices
(1) The notices required by section 4.8 must be given at least
2 months before the closing day.
(2) Every notice must show —
(a) a clear description of the land or waters to which the act
relates;
(b) a description of the nature of the act;
(c) the title of the Government party who —
(i) would do the act; and
(ii) will receive objections;
(d) the address at which objections may be lodged and the postal address
to which they may be sent;
(e) the closing day;
(f) the time of close of business of the Government party on the closing
day;
(g) the name and address of any person who is a proponent under
section 4.5 or is determined to be a proponent under
section 4.6(2);
(h) how further information about the act can be obtained; and
(i) any other information that is prescribed for the purposes of
section 4.10(1)(a).
(3) The particulars referred to in subsection (2)(c), (d) and (f) are
to be as determined by the Government party.
4.10. Prescribed
provisions about notice
(1) The regulations may make provision about the giving of notice under
this Division including about —
(a) the information that must be included in a notice; and
(b) how the requirement to give notice —
(i) may be satisfied either generally or in particular types of cases;
and
(ii) may be satisfied in conjunction with the giving of notice under
another written law that relates to a Part 4 act.
(2) Regulations of the kind referred to in subsection (1)(b)(ii) may
be expressed to be made under section 7.1 and under powers conferred by
another written law.
4.11. Right
to object to doing of act
(1) A person that is, in relation to any part of the relevant
land —
(a) a registered native title body corporate; or
(b) subject to subsection (3), a registered native title
claimant,
may lodge an objection to the doing of a Part
4 act.
(2) An objection may be lodged only on the ground that the doing of the
act in relation to the relevant land would affect the person’s registered
native title rights and interests in relation to that land.
(3) Subsection (1)(b) does not apply if there are one or more
registered native title bodies corporate in relation to all of the relevant
land.
4.12. Requirements
for objections
(1) An objection must —
(a) be lodged with the Government party in accordance with the
requirements of the relevant notice;
(b) state the manner in which it is said that the doing of the act would
be likely to affect the objector’s registered native title rights and
interests in relation to the relevant land; and
(c) comply with any other requirements of the regulations as to the form
or content of objections.
(2) The objector must give a copy of the objection to any proponent in
relation to the act.
(1) An objection to the doing of a Part 4 act cannot be lodged after the
closing day.
(2) Where, on the application of a person made before the closing day, the
Commission is satisfied that exceptional circumstances so require, the
Commission may —
(a) fix a later closing day for the lodgment
of objections to the doing of the act; and
(b) give such directions as the Commission thinks appropriate as to the
giving of notice of the day so fixed.
4.14. Government
party to notify the Commission of objections
(1) The Government party must notify —
(a) the Commission; and
(b) any proponent,
of the particulars of all objections to the doing of a Part 4 act lodged
on or before the closing day.
(2) The Government party must also notify an objector of particulars of
all such objections lodged by other objectors.
(3) Notification under subsection (1) or (2) of an objection must be
given not later than 14 days after the lodgment of the objection.
4.15. Withdrawal
of request etc. by proponent
(1) The proponent in relation to a Part 4 act may give notice in writing
to —
(a) the Commission;
(b) the other consultation parties (if any); and
(c) the Government party,
that the proponent’s application, request or submission for the
doing of the act is withdrawn.
(2) If there is more than one proponent a notice under subsection (1)
is of no effect unless it is given by all of the proponents jointly.
(3) The giving of a notice under subsection (1) to all of the persons
referred to in that subsection brings to an end any procedures that have begun
under this Part.
4.16. Withdrawal
of proposal by Government party
(1) The application of section 4.15 extends to cases
where —
(a) section 4.5 does not apply; and
(b) a proponent has not been determined under section 4.6(2).
(2) In that event —
(a) a notice may be given by the Government party that the act will not be
done; and
(b) the provisions of section 4.15 apply with all necessary
changes.
Division 3 — Consultation and agreements
4.17. Meaning
of “consultation parties”
References in this Part to consultation parties in relation
to a Part 4 act are references to —
(a) each proponent under section 4.5 and each objector; or
(b) where section 4.5 does not
apply —
(ii) each objector; and
(iii) any person determined under section 4.6(2) to be a proponent
but only so long as the person consents to being a consultation party.
(1) The consultation parties must consult with each other in good faith
about ways of minimizing the impact of the act on registered native title rights
and interests in relation to the relevant land, including
about —
(a) any access to the land or waters; or
(b) the way in which any thing authorized by the act may be
done,
with a view to bringing about the withdrawal of the objections.
(2) The consultation parties for the time being may begin consultations
even though the closing day for the act concerned has not arrived.
4.19. Involvement
of Commission, including mediation
(1) If any of the consultation parties requests the Commission to do so,
the Commission must mediate among the parties to assist in resolving the
differences between them on the relevant matters mentioned in
section 4.18.
(2) The consultation parties must report to
the Commission on progress made in the consultations at such time or times as
the Commission may in writing direct.
(3) If the Commission considers that the consultation parties or any of
them are not making sufficient attempts to resolve their differences the
Commission is to use its best endeavours —
(a) to have the parties consult together as required by section 4.18;
and
(b) to bring about —
(i) a resolution of the differences between them on the relevant matters
mentioned in section 4.18; or
(ii) the withdrawal of the objections.
(1) At any time before a recommendation is made under Division 4 in
relation to an objection the objector may withdraw the objection by notice in
writing given to the Commission.
(2) The Commission is to notify the consultation parties of any such
withdrawal.
4.21. Agreement
made by parties
If at any time before a recommendation is made under Division 4 the
consultation parties make an agreement that resolves the issues on which the
objections were based, they may give a copy of it to the Commission.
Division 4 — Recommendations of the Commission
4.22. Commission
may notify intention to hear
(1) The Commission may, after the consultation period for a Part 4 act has
expired, give notice to the consultation parties that it intends to hear and
determine objections to the doing of the act —
(a) if —
(i) all of the objections have not been withdrawn; or
(ii) an agreement of the kind described in section 4.21 has not been
made between the consultation parties and given to the Commission under that
section;
and
(b) if the Commission considers that any mediation requested under
section 4.19(1) has been completed.
(2) A notice under subsection (1) in respect of a Part 4 act may be
given by the Commission —
(a) of its own motion; or
(b) on the application of a consultation party.
(3) The Commission must grant an application made under
subsection (2)(b) if the application complies with section 4.41 and is
accompanied by the things required by section 4.42.
(4) Without limiting section 6.22, a
notice under subsection (1) may relate to more than one act and the
objections to the doing of the act.
(5) In this section —
consultation period means the period beginning on the
closing day and ending 4 months after that day.
4.23. Consultations
may continue
Where the Commission —
(a) has given notice under section 4.22; but
(b) has not made a recommendation,
in respect of a Part 4 act, the consultation parties may continue to
consult together with a view to bringing about —
(c) a resolution of the issues on which the objections are based;
and
(d) the withdrawal of the objections.
(1) The Commission must dismiss an objection
if —
(a) it is not made by a registered native title body corporate or a
registered native title claimant as required by section 4.11(1);
or
(b) none of the rights and interests claimed to be affected by the doing
of the act are registered native title rights and interests of the
objector.
(2) The Commission must notify an objector of the dismissal of his or her
objection.
4.25. Time
for making recommendation
(1) Subject to section 4.26, the Commission must take all reasonable
steps to make a recommendation in respect of a Part 4 act within the period
of 4 months (the allowed period)
starting when a notice under section 4.22 is given in respect of the
act.
(2) If it appears to the Commission that it
will not make a recommendation within the allowed period, the Commission may
before the end of the period ask the responsible Minister to extend the period,
and that Minister may comply with the request.
(3) An extended period may be further extended under
subsection (2).
4.26. No
recommendation if agreement etc.
The Commission must not make a recommendation in respect of a Part 4 act
if —
(a) all of the objections to the doing of the act have been withdrawn;
or
(b) an agreement of the kind described in section 4.21 has been made
between the consultation parties and given to the Commission under that
section.
4.27. Making
of recommendation
(1) Except where section 4.26 applies, the Commission must make one
of the following recommendations —
(b) that the act be done subject to specified
conditions being complied with by any of the consultation parties;
(c) that the act not be done.
(2) The Commission may specify conditions under subsection (1)(b)
only if they relate to the doing of the act as it affects registered native
title rights and interests in relation to the relevant land.
4.28. Criteria
for making recommendations
(1) In making its recommendation in respect of any Part 4 act, the
Commission must —
(a) take into account the impact of the act on registered native title
rights and interests of the objectors in relation to the relevant land;
and
(b) unless it recommends that the act not be done, consider ways in which
that impact can be minimized.
(2) In addition, in making its recommendation in respect of a Part 4 act
that is not a compulsory acquisition that comes within section 24MD(6B)(a)
of the NTA, the Commission must consider questions
of —
(a) access to the relevant land; and
(b) the way in which any thing authorized by the act may be
done.
(3) The Commission must also take into account the nature and extent
of —
(a) existing rights and interests that are not native title rights and
interests, in relation to the relevant land; and
(b) existing use of the relevant land by persons other than the
objectors.
4.29. Issues
on which parties agree
(1) Before making its recommendation, the Commission must ascertain
whether the consultation parties have an agreed position on any issues relevant
to its recommendation.
(2) If there is any such issue, and all of the consultation parties
consent, the Commission in making its
recommendation —
(a) must take that agreed position into account; and
(b) need not take into account the matters mentioned in section 4.28,
to the extent that the matters relate to that issue.
4.30. Copy
of recommendation to be given
The Commission must give a copy of any recommendation under
section 4.27 to the consultation parties and the responsible
Minister.
4.31. Effect
of recommendation
A recommendation must be complied with by the Government party unless it
is overruled by a determination of the responsible Minister under
section 4.33.
4.32. Effect
of recommendation that specifies conditions
(1) A recommendation by the Commission that a Part 4 act may be done
subject to conditions being complied with by the consultation parties has
effect, if the act is done, as if the conditions were terms of a contract among
the consultation parties.
(2) Subsection (1) is in addition to —
(a) the effect that the recommendation has under section 4.31;
and
(b) any condition that the Government party may impose in relation to the
act in order to give effect to the recommendation.
(3) If an objector is a registered native title claimant, any other person
included in the native title claim group concerned is taken to be a consultation
party for the purposes only of this section.
Division 5 — Overruling of recommendations
4.33. Responsible
Minister may overrule a recommendation
(1) Subject to sections 4.35 and 4.36, the responsible Minister may,
by writing given to the Commission, make a determination in accordance with
section 4.34.
(2) A determination cannot be made by the
responsible Minister in respect of a recommendation after 2 months have
expired since the recommendation was made.
(3) The Commission must give a copy of the
determination to the consultation parties concerned.
4.34. Determinations
that responsible Minister may make
(1) In the case of a recommendation under section 4.27(1)(a), the
responsible Minister may make a determination that the recommendation is
overruled and either —
(a) that the act to which it relates must not be done; or
(b) that the act to which it relates may be done subject to specified
conditions to be complied with by any of the consultation parties.
(2) In the case of a recommendation under section 4.27(1)(b), the
responsible Minister may make a determination that the recommendation is
overruled and —
(a) that the act to which it relates must not be done;
(b) that the act to which it relates may be done; or
(c) that the act to which it relates may be done subject to specified
conditions to be complied with by any of the consultation parties.
(3) In the case of a recommendation under section 4.27(1)(c), the
responsible Minister may make a determination that the recommendation is
overruled and either —
(a) that the act to which it relates may be done; or
(b) that the act to which it relates may be done subject to specified
conditions to be complied with by any of the consultation parties.
(4) The responsible Minister may only specify conditions under this
section that relate to the doing of the act as it affects registered native
title rights and interests in relation to the relevant land.
(5) In this section —
specified means specified in the determination.
4.35. Consultation
before making of determination
(1) This section applies if the effect of the responsible Minister’s
determination under section 4.33 is that the act may be
done —
(a) unconditionally;
(b) subject to conditions being complied with; or
(c) subject to conditions being complied with that are different in any
respect from the conditions specified in the recommendation that is
overruled.
(2) If this section applies, the responsible Minister may only make a
determination under section 4.33 after he or she
has —
(a) consulted the State Minister principally responsible for indigenous
affairs about —
(i) the Commission’s recommendation; and
(ii) any determination that the responsible Minister may make;
and
(b) taken into account any recommendation or advice made or given by that
Minister.
(3) Before the consultations referred to in subsection (2) are held,
the State Minister principally responsible for indigenous affairs is to be
given —
(a) by the Commission, any submission or other material that was put
before it in relation to the recommendation in question; and
(b) by the responsible Minister, any submission or other material that has
been put before him or her for the purposes of the determination in
question.
(4) The duty imposed by subsection (3)(b) applies subject to any
direction given by the Commission under section 6.29.
4.36. Ground
on which determination may be made
(1) The responsible Minister may only make a determination under
section 4.33 on the ground that it is in the interests of the State to do
so.
(2) In subsection (1) —
in the interests of the State
includes —
(a) for the social or economic benefit of the State (including of
Aboriginal peoples); and
(b) in the interests of the relevant region or locality in the
State.
4.37. Conditions
in determination
(1) A provision in a determination by the responsible Minister under
section 4.33 that a Part 4 act may be done subject to conditions being
complied with by any of the consultation parties has effect, if the act is done,
as if the conditions were terms of a contract among the consultation
parties.
(2) Subsection (1) is in addition to —
(a) the effect that the determination has apart from this section;
and
(b) any condition that the Government party may impose in relation to
the act in order to give effect to the determination.
(3) If an objector is a registered native title claimant, any other person
included in the native title claim group concerned is taken to be a consultation
party for the purposes only of this section.
4.38. Copy
of determination to be laid before Parliament
(1) The responsible Minister must cause a copy of a determination under
section 4.33, together with reasons for the determination, to be laid
before each House of Parliament.
(2) Subsection (1) is to be complied with as soon as is practicable
after the determination is made and in any case, in relation to a House of
Parliament, within 15 sitting days of that House after the determination is
made.
4.39. Responsible Minister may
declare intention not to overrule
(1) The responsible Minister may by instrument given to the Commission
declare that he or she does not intend to exercise any power conferred by
section 4.33 in respect of a particular recommendation.
(2) If an instrument is given to the
Commission under subsection (1) the responsible
Minister —
(a) cannot revoke the instrument; and
(b) cannot exercise any power conferred by section 4.33 in respect of
the recommendation concerned.
(3) The Commission is to notify the consultation parties of the giving of
an instrument to it under subsection (1).
Division 6 — Applications
In this Division —
application means an application under
section 4.22(2)(b).
4.41. Form
and contents of application
An application must —
(a) be made in accordance with the regulations; and
(b) comply with the requirements of the regulations as to the form or
content of applications.
4.42. Material
and fees to accompany applications
An application must be accompanied by any prescribed documents and any
prescribed fee.
4.43. Application fee may be
waived
The Chief Commissioner may waive payment of the whole or part of a fee
payable by a person under section 4.42 where —
(a) in the Chief Commissioner’s opinion, payment of the whole or
part of the fee would cause financial hardship to the person; or
(b) for any other reason the Chief Commissioner considers it appropriate
to do so.
Part 5 — Provisions relating to
compensation
Division 1 — Preliminary
5.1. Definition
In this Part, other than in section 5.2(1) and 5.2(2) —
native title holders, in relation to a Part 2 act, a
Part 3 act or a Part 4 act, means the persons who —
(a) hold native title; or
(b) immediately before the act was done, held native title,
in relation to the land affected by the act, but only if there has been an
approved determination of native title to that effect, which includes the
following cases if the act concerned is a compulsory acquisition —
(c) where it is apparent from the terms of, or reasons for, the
determination that the persons held native title immediately before the
acquisition; or
(d) where it is not apparent from the terms of, or reasons for, the
determination that native title did not exist immediately before the
acquisition.
Division 2 — Determination of compensation
5.2. Commission to determine compensation for certain acts
(1) This section applies where a Part 2 act, a Part 3 act or a Part 4 act
is done, other than an act that is a compulsory acquisition of native title
rights and interests for which the native title holders in relation to the
relevant land are entitled to compensation under the Land Administration
Act 1997.
(2) The native title holders are entitled to compensation on just terms
under this section for any loss, diminution or impairment of, or other effect of
the act on, their native title rights and interests.
(3) The principles set out in Division 3 apply to a determination of
compensation under this section.
(4) The Commission, on application made —
(a) is to determine the amount of any such compensation and the native
title holders entitled to receive it; and
(b) may make such orders as it considers appropriate, including orders as
to costs and other ancillary matters.
(5) The compensation is recoverable —
(a) from any person who is made liable for the compensation by a written
law; or
(b) to the extent that —
(i) no such liability is provided for; or
(ii) an order under subsection (6) so provides,
from the Crown.
(6) If, on application made, the Commission is satisfied that —
(a) a person who is made liable as mentioned in subsection (5)(a) no
longer exists; or
(b) there is no reasonable prospect of the compensation, or part of it,
being recovered from that person,
the Commission may order that the compensation, or the part in question,
is recoverable from the Crown.
(7) If compensation is recovered from the Crown because of an order under
subsection (6), the Crown is subrogated to the rights that the native title
holders concerned had against the person referred to in that subsection in
relation to the recovery of the amount paid.
(8) An application under subsection (4) or (6) is to be
made —
(a) by the native title holders concerned; or
(b) on their behalf, by a native title holder concerned or a registered
native title body corporate,
and is to be made in accordance with any requirements of the
regulations.
5.3. Parties may agree on compensation
Nothing in section 5.2 prevents —
(a) the native title holders entitled to compensation under that section
for an act, or a registered native title body corporate acting on their behalf;
and
(b) the party from whom the compensation is recoverable,
from settling the amount of compensation by agreement without invoking
the jurisdiction of the Commission.
5.4. Enforcement of order for compensation
(1) Where compensation is recoverable by or on behalf of a native title
holder by virtue of an order under section 5.2, the Chief Commissioner, on
application by or on behalf of the native title holder, is to issue a certified
copy of the order.
(2) If the certified copy is lodged with the clerk or registrar of a court
in accordance with the rules of court, the clerk or registrar is to register the
order.
(3) The order when registered may be enforced as if it were an order made
by the court.
(4) In this section —
court means —
(a) the Magistrates Court if the order would be within the jurisdictional
limit of that Court in respect of the recovery of debts;
(b) if paragraph (a) does not apply, the District Court, if the order
would be within the monetary limit of the jurisdiction of that Court in respect
of the recovery of debts; or
(c) otherwise, the Supreme Court.
[Section 5.4 amended by No. 59 of 2004 s. 141.]
Division 3 — Principles to be applied in the
determination of compensation
5.5. No multiple compensation for essentially same act
Compensation under this Part —
(a) is only payable once for acts that are essentially the same;
and
(b) is to be determined taking into account any compensation awarded under
another written law, or the NTA, for essentially the same act.
5.6. Compensation principles to be as for ordinary title
The Commission in determining compensation for an act under this Part
must, subject to sections 5.7 and 5.8, have regard to any principles or
criteria for determining compensation set out in a written law that would apply
to the determination if the native title holders instead held ordinary title to
any land or waters concerned and to the land adjoining or surrounding any waters
concerned.
5.7. Compensation to be monetary
Subject to section 5.8, compensation may only consist of the payment
of money.
5.8. Requests for non-monetary compensation
(1) If the person applying for compensation under this Part requests that
the whole or part of the compensation should consist of the transfer of property
or the provision of goods or services, the
Commission —
(a) must consider the request; and
(b) may, instead of determining the whole or any part of the compensation,
recommend that the person liable to give the compensation should, within a
specified period, transfer property or provide goods or services in accordance
with the recommendation.
(2) If the person does not transfer the property or provide the goods or
services in accordance with the recommendation, the person applying for
compensation may request the Commission to determine instead that the whole or
the part of the compensation concerned is to consist of the payment of
money.
(3) If the person does transfer the property or provide the goods or
services in accordance with the recommendation —
(a) the transfer of the property or provision of the goods or services
constitutes full or part compensation for the act, as the case may be;
and
(b) the entitlement to compensation is taken to have been determined in
accordance with the provisions of this Part.
Division 4 — Determination of amounts to be
held in trust and payment of those amounts
5.9. Conditions for payment of amounts to be held in trust
(1) This section applies to a condition in one of the following
instruments —
(a) a determination by the responsible Minister under
section 3.29;
(b) a determination by the Commission under section 3.44;
and
(c) a declaration by the responsible Minister under
section 3.51.
(2) If a condition is that an amount is to be paid and held in trust until
it is dealt with in accordance with
section 5.10 —
(a) the Commission must determine the amount; and
(b) the amount, when paid, must be held in trust in accordance with the
regulations until it is dealt with in accordance with that section.
5.10. How
amounts held in trust to be dealt with
The relevant provisions of sections 5.11 to 5.16 apply if an amount
(the trust amount) in respect of an
act is being held in trust in accordance with a condition referred to in
section 5.9(2) and any of the following
happens —
(a) an approved determination of native title is made to the effect that
there is no native title in relation to the area concerned immediately before
the act takes place;
(b) the Government party informs the trustee in writing that it is not
going to do the act;
(c) the following requirements are
satisfied —
(i) an approved determination of native title is made to the effect that
the persons concerned are (disregarding any holding of the native title in trust
under Part 2 Division 6 of the NTA) the native title holders in relation to
the area affected by the act;
(ii) the registered native title body corporate advises the trustee that
it wishes to accept the trust amount instead of any compensation to which the
native title holders may be entitled for the act under this Act or another
written law; and
(iii) the person who paid the trust amount advises the trustee that the
person agrees to the registered native title body corporate accepting the trust
amount instead of any compensation to which the native title holders may be
entitled for the act under this Act or another written law;
(d) a determination is made, on a claim for compensation in respect of the
act, that a person is entitled to compensation, or that no compensation is
payable to any person;
(e) none of paragraphs (a), (b), (c) and (d) applies and the
Commission determines, on application by any person, that it would be just and
equitable in all the circumstances to pay the trust amount to that person or
another person.
5.11. Section 5.10(a)
or (b) cases
Where section 5.10(a) or (b) applies, the trustee
must —
(a) repay the trust amount to the person who paid it to the trustee;
or
(b) if that person no longer exists, apply to the Commission for a
direction as to the payment of the trust amount.
5.12. Section 5.10(c)
cases
Where section 5.10(c) applies —
(a) the trustee must pay the trust amount to the body corporate;
and
(b) subject to section 53 of the NTA, there is no further entitlement
to compensation for the act.
5.13. Section 5.10(d)
cases where monetary compensation
Where section 5.10(d) applies and the determination is that a person
is entitled to an amount of monetary compensation —
(a) if the trust amount is the same as the amount determined, the trustee
must pay the trust amount to the person;
(b) if the trust amount is less than the amount determined, the trustee
must pay the trust amount to the person and the Government party must pay the
shortfall to the person; or
(c) if the trust amount is more than the amount determined, the trustee
must —
(i) pay the person so much of the trust amount as equals the amount
determined; and
(ii) refund the excess to the person who paid the trust amount to the
trustee or, if that person no longer exists, apply to the Commission for a
direction as to its payment.
5.14. Section 5.10(d)
cases where non-monetary compensation
Where section 5.10(d) applies and —
(a) the transfer of property; or
(b) the provision of goods or services,
constitutes some or all of the compensation, the trustee must apply to
the Commission for a direction as to the payment of the trust amount.
5.15. Section 5.10(d)
cases where no compensation
Where section 5.10(d) applies and the determination is that no
compensation is payable or to be given to any person, the trustee must repay the
trust amount to the person who paid it to the trustee or, if that person no
longer exists, apply to the Commission for a direction as to its
payment.
5.16. Section 5.10(e)
cases
Where paragraph (e) of section 5.10 applies, the trustee must
pay the trust amount in accordance with the decision of the Commission mentioned
in that paragraph.
5.17. Jurisdiction
of the Commission under this Division
The Commission has jurisdiction —
(a) to hear and determine the applications referred to in
sections 5.10(e), 5.11(b), 5.13(c)(ii), 5.14 and 5.15; and
(b) to make such orders in the proceedings as it considers
appropriate.
Part 6 — Native Title Commission
Division 1 — Commission established
6.1. Establishment
of Commission
The Native Title Commission of Western Australia is
established.
(1) The functions of the Commission are —
(a) to exercise the jurisdiction and to perform the functions given to it
by this Act; and
(b) to perform any function that may be given to it by any other written
law.
(2) The Commission may do all things that are necessary or convenient to
be done for the performance of its functions.
6.3. Requirements
for fairness etc. to be observed
The Commission is to —
(a) perform its functions fairly, justly and expeditiously; and
(b) ensure that, subject to this Act, its procedures are informal and
accessible.
6.4. Membership
of the Commission
(1) The Commission is to comprise —
(a) a Chief Commissioner; and
(b) such number of other members as the Governor considers necessary for
the proper performance of the Commission’s functions.
(2) All of the members are to be appointed by the Governor.
(3) The Chief Commissioner is to be appointed
on a full-time basis.
(4) An ordinary member may be appointed on either a full-time basis or a
part-time basis.
6.5. Eligibility
for appointment as Chief Commissioner
A person is not eligible to be appointed as the Chief Commissioner unless
the person has been enrolled for at least 5 years as a legal practitioner
of —
(a) the Supreme Court;
(b) the High Court; or
(c) the Supreme Court of another State or of a Territory.
6.6. Appointment
of member of NNTT
Not less than one of the ordinary members is to be a person who holds an
appointment under the NTA as a member of the NNTT.
6.7. Qualifications
for appointment
Without limiting section 6.6, a person must not be appointed as an
ordinary member unless the person —
(a) has been enrolled for at least
5 years as a legal practitioner of —
(i) the Supreme Court;
(ii) the High Court; or
(iii) the Supreme Court of another State or of a Territory;
or
(b) has, in the opinion of the Governor, expertise in one or more of the
following —
(i) matters relating to Aboriginal peoples;
(ii) land and resource management;
(iii) dispute resolution;
(iv) any other class of matter considered by the Governor to be
substantially relevant to the duties of a member.
6.8. Ordinary
members, notice of proposed appointment
(1) Where it is proposed to appoint any person as an ordinary member, the
Minister must give notice of the proposal in —
(a) the Gazette; and
(b) a daily newspaper circulating generally throughout the
State,
and may give notice in such other newspapers, journals or electronic
media as the Minister considers appropriate.
(2) A notice referred to in subsection (1)
must —
(a) set out the qualifications required by section 6.7 for
appointment as an ordinary member;
(b) invite persons or organizations who wish
to do so to nominate, in the manner specified in the notice, persons for
consideration as appointees; and
(c) invite persons who wish to do so to inform the Minister, in the manner
specified in the notice, that they are interested in becoming an ordinary
member.
(3) This section does not apply to an appointment for the purposes of
section 6.6.
6.9. Administrative
functions of Chief Commissioner
In addition to the functions given to the Chief Commissioner by
particular provisions of this Act, he or she —
(a) is responsible for managing the administrative affairs of the
Commission; and
(b) may do all things necessary or convenient to be done for that
purpose.
6.10. Authorization of Chief
Commissioner for purposes of section 199F of the NTA
(1) The object of this section is to make
provision for delegation to the Chief Commissioner by the Native Title Registrar
under the power conferred by section 199F of the NTA.
(2) The State Minister may on behalf of the State agree to any delegation
referred to in subsection (1) and the Chief Commissioner may exercise
powers in accordance with the delegation.
(1) The Chief Commissioner may, by signed instrument, delegate to one or
more of the ordinary members all or any of the Chief Commissioner’s
functions under this Act.
(2) Subsection (1) does not apply to —
(a) the power of delegation conferred by that subsection; or
(b) any function that may be delegated to the Chief Commissioner under
section 199F of the NTA as provided for by section 6.10.
6.12. Other
provisions relating to members
Schedule 1 has effect in relation to members.
Division 2 — Staff of the
Commission
6.13. Use
of government staff etc.
(1) Arrangements may be made under this section to enable the Commission
and the Chief Commissioner to perform their respective functions.
(2) An arrangement may be made with the relevant employer for the use,
either full-time or part-time, of the services of any officer or
employee —
(a) in the Public Service;
(b) in a State agency or instrumentality; or
(c) otherwise in the service of the Crown in right of the State.
(3) An arrangement may be made with —
(a) a department of the Public Service; or
(b) a State agency or instrumentality,
for the use of any facilities of the department, agency or
instrumentality.
(4) Arrangements under this section —
(a) may be made by the Chief Commissioner acting under section 6.9;
and
(b) are to be made on such terms as are agreed to by the
parties.
The Chief Commissioner may, acting under section 6.9, engage a
person under a contract for services to provide professional, technical or other
assistance to the Commission or the Chief Commissioner.
Division 3
— Operation of Commission
Subdivision 1 — How Commission to be
constituted
(1) For the performance of its functions in respect of a particular matter
the Commission consists of the member or members specified by the Chief
Commissioner under section 6.18(2) for that matter.
(2) In exercising the power referred to in subsection (1) in respect
of a matter to which subsection (1) or (2) of section 6.16 applies,
the Chief Commissioner is to ensure that the constitution of the Commission
satisfies that subsection.
6.16. Constitution
of Commission for the performance of certain functions
(1) For the performance of its functions under Part 3, other than its
mediation function under section 3.23(1), the Commission must
include —
(a) at least one member who is qualified as mentioned in
section 6.7(a); and
(b) at least one member who holds an appointment under the NTA as a member
of the NNTT.
(2) The Commission when performing any function in relation to a matter
that involves the determination of an issue cannot be constituted by, or
include, a member who has taken part in mediation in relation to that matter,
unless each party consents to the Commission being constituted by or including
that member.
The Commission constituted in accordance with this Division may perform
the functions of the Commission in respect of a particular matter, even though
the Commission differently constituted in accordance with this Division is at
the same time performing the functions of the Commission in respect of some
other matter.
Subdivision 2 — Arrangement of
business
6.18. Arrangement
of business of the Commission
(1) The Chief Commissioner is responsible for —
(a) arranging the business of the Commission;
(b) directing where the Commission is to sit;
(c) determining the procedure of the Commission generally; and
(d) determining the procedure of the Commission at a particular
place.
(2) In performing the function in subsection (1)(a) the Chief
Commissioner is to specify for the purpose of any particular matter or any
particular class of matters —
(a) the member or members who are to perform
the functions of the Commission; and
(b) if 2 or more members are specified, the member who is to be the
chairperson.
6.19. Unavailability
of member
(1) This section applies if —
(a) a member specified under section 6.18(2) for proceedings ceases
to be a member and section 6.20 does not apply; or
(b) a member is for any reason not available
for proceedings for which the member has been specified under
section 6.18(2).
(2) The Chief Commissioner must specify another member for the proceedings
or, if the parties agree, the Chief Commissioner may direct that the Commission
be constituted by the remaining specified member or members (if any).
(3) In exercising a power in subsection (2) the Chief Commissioner
must ensure, if subsection (1) or (2) of section 6.16 applies, that
the constitution of the Commission continues to satisfy that
subsection.
6.20. Completion
of part-heard proceedings
Despite a person ceasing to be a member because of the expiry of his or
her term of office, the person may, with the approval of the Chief Commissioner,
continue as a member for the purpose of completing part-heard
proceedings.
Subdivision 3 — Hearings
6.21. Commission
to hold hearings
The Commission is to hold such hearings as are necessary or expedient for
the performance of its functions.
6.22. Commission
may determine whether matters are to be grouped together
The Commission may, of its own motion or on the application of any of the
parties concerned, direct that specified matters are to be dealt
with —
(a) in the same proceedings or in separate proceedings; or
(b) at the same hearing or hearings or at separate hearings.
6.23. Opportunity
to make submissions
Subject to sections 6.27(3) and 6.29, the Commission must ensure
that each party is given a reasonable opportunity to present the party’s
case and, in particular —
(a) to inspect any documents to which the
Commission proposes to have regard in making a recommendation or determination;
and
(b) to make written or oral submissions in respect of those
documents.
6.24. Questions
to be decided by majority
All questions for decision by the Commission are to be decided by a
majority of the members hearing the matter, with the chairperson having a
casting vote.
6.25. Representation
before Commission
A party may appear in person or be represented by any person before the
Commission.
6.26. Participation
by telephone, etc.
The Commission may allow a person to participate in a hearing by means of
telephone, closed-circuit television or any other means of
communication.
6.27. Hearings
normally to be public
(1) Subject to this section, a hearing by the Commission must be held in
public.
(2) If a hearing is in public, and a person participates by a means
allowed under section 6.26, the Commission must take such steps as are
reasonably necessary to maintain the public nature of the hearing.
(3) The Commission may, of its own motion or
on the application of a party, if it is satisfied that it is appropriate to do
so, direct that a hearing, or part of a hearing, be held in private and give
directions as to the persons who may be present.
(4) In determining whether a hearing or part
of a hearing is to be in private, the Commission must have due regard to the
cultural and customary concerns of Aboriginal peoples.
Subdivision 4 — Evidence and
information
6.28. Evidence
and findings of other bodies
In any proceedings, the Commission may, at its
discretion —
(a) receive in evidence the transcript of evidence in any other
proceedings before the Commission, any court or any other person or
body;
(b) receive in evidence any report, findings, decision, determination or
judgment of a person or body referred to in paragraph (a); or
(c) adopt any report, findings, decision, determination or judgment of a
person or body referred to in paragraph (a),
that it considers may be relevant to the proceedings.
6.29. Commission
may prohibit disclosure of evidence
The Commission may direct that —
(a) any evidence given before it; or
(b) the contents of any document produced to it,
must not be disclosed, or must not be disclosed except in the way, and to
the persons, specified in the direction.
6.30. Power
of Commission to summon
The Commission may, by summons signed on behalf of the Commission by the
Chief Commissioner, require any person —
(a) to appear before the Commission, or before a person authorized under
section 6.33; or
(b) to produce any documents specified in the summons to the Commission or
to a person authorized under section 6.33,
or to do both of those things.
6.31. Power
of Commission to take evidence
(1) The Commission may take evidence on oath or affirmation, and for that
purpose a member of the Commission may administer an oath or
affirmation.
(2) A party may call witnesses.
(3) A person appearing before the Commission as a witness may be
examined.
(4) A person appearing before the Commission as a witness may be
cross-examined or re-examined only with the leave of the Commission.
(5) If a person participates in a hearing by a means allowed under
section 6.26, the Commission may make any arrangements that it thinks
proper in the circumstances for administering an oath or affirmation to the
person.
6.32. Power
of the Commission to require answers
The Commission may require any person appearing before it (whether or not
he or she has been summoned to appear) to answer any relevant question put to
him or her by a member of the Commission or by any other person appearing before
the Commission.
6.33. Commission
may authorize another person to take evidence
(1) The Commission may authorize a person to take evidence in relation to
a matter on behalf of the Commission.
(2) The authorization must be in writing and may specify limitations on
the powers of the person.
(3) A person authorized under this section has, for the purposes of taking
the evidence, and subject to any limitations referred to in subsection (2),
all the powers of the Commission under section 6.31.
The Commission may allow evidence to be given, or submissions to be made,
with the assistance of an interpreter.
6.35. Retention
and copying of documents
The Commission may keep for a reasonable time, and may make copies of,
any document, or part of a document, produced to the Commission in the course of
a hearing.
Subdivision 5 — Recommendations and
determinations
6.36. Recommendations
and determinations
(1) A recommendation or determination of the Commission must —
(a) be in writing;
(b) state any findings of facts on which it is based;
(c) refer to the evidence or other material on which such findings are
based; and
(d) give reasons for the recommendation or determination.
(2) A copy of a recommendation or determination must be given
to —
(a) each of the parties in the proceeding; and
(b) the responsible Minister.
Division 4 — Financial
provisions
6.37. Funds
for carrying out this Act
The funds available for the purposes of this Act consist
of —
(a) moneys from time to time appropriated by Parliament; and
(b) other moneys lawfully received by, made available to or payable to the
Commission for the purposes of this Act.
6.38. Native
Title Commission Account
(1) An account called the Native Title Commission Account is to be
established —
(a) as an agency special purpose account under section 16 of the
Financial Management Act 2006; or
(b) with the approval of the Treasurer, at a bank as defined in
section 3 of that Act,
to which the funds referred to in section 6.37 are to be
credited.
(2) The Account is to be charged with —
(a) the remuneration and allowances payable under this Act; and
(b) all other expenditure lawfully incurred in carrying out this
Act.
[Section 6.38 amended by No. 77 of 2006
s. 17.]
6.39. Application
of Financial Management Act 2006 and the Auditor General
Act 2006
The provisions of the Financial Management Act 2006 and the
Auditor General Act 2006 regulating the financial administration,
audit and reporting of statutory authorities apply to and in respect of the
Commission and things done in the performance of functions under this
Act.
[Section 6.39 amended by No. 77 of 2006
s. 17.]
Division 5 — General
6.40. Communication
of information in certain cases
(1) Where —
(a) the Commission is required by or under this Act to cause a document to
be served on or given to any person; and
(b) it appears to the Commission that the person is blind or illiterate or
is not literate in the English language,
the Commission is, so far as it is reasonably practicable to do so, to
cause the information contained in the document to be communicated to the person
in a manner that the person understands.
(2) Failure to comply with subsection (1) does not affect any thing
done under any other provision of this Act.
6.41. Reference
of question of law to the Supreme Court
(1) The Commission may, of its own motion or at the request of a party,
refer to the Supreme Court for a decision any question of law arising in
proceedings under Part 2, 3, 4 or 5.
(2) The Supreme Court has jurisdiction to hear
and determine a question of law referred to it under this section.
(3) If a question of law arising in proceedings is referred to the Supreme
Court under this section, the Commission must not, in those
proceedings —
(a) make a recommendation or determination to which the question is
relevant while the reference is pending; or
(b) proceed in a manner, or make a recommendation or determination,
inconsistent with the decision of the Court on the question.
(1) A person who is served with a summons under section 6.30 must not
fail without reasonable excuse to comply with the summons.
(2) A person must not fail without reasonable excuse to make an oath or
affirmation, or to answer a question, when required to do so by the
Commission.
Penalty: $2 500.
(3) A person must not give to —
(a) the Commission; or
(b) a person authorized under section 6.33,
evidence that the person knows to be false or misleading in a material
particular.
Penalty: $5 000.
(4) A person must not misbehave before the Commission, wilfully insult the
Commission or a member, or interrupt the proceedings of the
Commission.
Penalty: $5 000.
(5) A person must not disclose any material in contravention of a
direction given under section 6.27(3) or 6.29.
(1) A member who has a conflict of interest in relation to any proceedings
must disclose the matters giving rise to that
conflict —
(a) in the case of the Chief Commissioner, to the Minister and to each
party; or
(b) in any other case, to the Chief Commissioner and to each
party.
(2) The member must not take part in, or exercise any powers in relation
to, the proceedings unless —
(a) in the case of the Chief Commissioner, the Minister and each party
consents; or
(b) in any other case, the Chief Commissioner and each party
consents.
(3) For the purposes of this section, a member has a conflict of interest
in relation to proceedings if the member has any interest, pecuniary or
otherwise, that could conflict with the proper performance of the member’s
functions in relation to those proceedings.
6.44. Protection
of members and persons appearing before the Commission
(1) A member has, in the performance of his or her functions, the same
protection and immunity as a Judge of the Supreme Court.
(2) A person appearing before the Commission on behalf of a party has the
same protection and immunity as a barrister has in appearing on behalf of a
party before the Supreme Court.
(3) Subject to this Act, a person appearing before the Commission to give
evidence (whether or not in response to a summons) has the same protection, and
is, in addition to the penalties provided by this Act, subject to the same
liabilities as a witness in proceedings in the Supreme Court.
(1) A person who is, or has been, a member or officer of the Commission is
not competent, and cannot be required, to give evidence to a court relating to a
matter if —
(a) the giving of the evidence would be contrary to a direction under
section 6.29; or
(b) an application has been made to the Commission for a direction under
that section concerning the matter to which the evidence relates, and the
Commission has not yet determined that application.
(2) A person who is, or has been, a member or an officer of the Commission
cannot be required to produce in court a document given to the Commission in
connection with a proceeding if —
(a) the production of the document would be contrary to a direction under
section 6.29; or
(b) an application has been made to the
Commission for a direction under that section concerning the matter to which the
document relates, and the Commission has not yet determined that
application.
(3) A person who is, or has been, a member or an officer of the Commission
cannot be required to give evidence to a court in relation to any proceedings
before the Commission.
(4) In this section —
court includes any tribunal, authority or person having the
power to require the answering of questions or the production of
documents;
produce includes permit access to.
7.3. Consequential amendments
Schedule 2 has effect.
Schedule 1 — Provisions relating to members of
the Commission
[s. 6.12]
1. Term of office
(1) A member holds office for the term specified in the instrument of
appointment but may from time to time be reappointed.
(2) Subject to subclause (3), a term of appointment must not exceed
5 years.
(3) An appointment may be made for a term of more than 5 years and
not more than 7 years and 6 months if —
(a) the appointment is made within 12 months after the commencement
of this clause; and
(b) on the making of the appointment, members appointed under this
subclause do not constitute more than half of the membership.
2. Remuneration, allowances and conditions of service
(1) A member is to —
(a) receive such remuneration and allowances; and
(b) have such entitlements to leave and other conditions of
service,
as are determined by the Governor on the advice of the Minister for
Public Sector Management.
(2) Subclause (1) does not apply to the member referred to in
section 6.6.
3. Oath or affirmation of office
Before he or she takes up office a member is to take an oath or make an
affirmation before a Judge of the Supreme Court that he or she will faithfully
and impartially perform the functions of his or her office.
4. Leave of absence
The Minister may grant a full-time member leave of absence, other than
leave of absence determined under clause 2, on such terms and conditions as
the Minister determines.
5. Resignation
A member may resign from office by giving a signed notice of resignation
to the Governor.
6. Termination of appointment of NNTT member
(1) The appointment of a person who is appointed as a member for the
purposes of section 6.6 terminates if the person ceases to be a member of
the NNTT.
(2) The application of subclause (1) to a person does not affect the
application to him or her of clause 7, 8 or 9.
7. Termination of appointment of member for bankruptcy etc.
The Governor must terminate the appointment of a member if the
member —
(a) becomes bankrupt;
(b) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors;
(c) compounds with his or her creditors; or
(d) makes an assignment of his or her remuneration for the benefit of his
or her creditors.
8. Suspension by Governor and termination
(1) The Governor may suspend a member from office on the ground of
misbehaviour or of physical or mental incapacity.
(2) If the Governor suspends a member under subclause (1), the
Minister must cause a statement of the grounds for the suspension to be laid
before each House of Parliament within 7 sitting days of that House after the
suspension.
(3) If each House of Parliament, within 15 sitting days after the
statement was laid before it, declares by resolution that the member’s
appointment should be terminated, the Governor must terminate the member’s
appointment.
(4) If, at the end of 15 sitting days after the statement was laid before
a House of Parliament, the House has not passed such a resolution, the
suspension terminates.
(5) The suspension of a member under this clause does not affect any
entitlement of the member to be paid remuneration and allowances.
9. Termination on address of both Houses of Parliament
The Governor may terminate the appointment of a member if an address
praying for the termination of the member’s appointment on the ground of
proved misbehaviour or of physical or mental incapacity is presented to the
Governor by each House of Parliament in the same session of
Parliament.
Schedule 2 — Consequential
amendments
[s. 7.3]
Division 1 — Acts Amendment (Land
Administration, Mining and Petroleum) Act 1998
1. The Act amended
The amendments in this Division are to the Acts Amendment (Land
Administration, Mining and Petroleum) Act 1998.
2. Section 2 amended
(1) Section 2(1) is amended by deleting “Subject to
subsections (2) and (3), this” and inserting
instead —
“ This ”.
(2) Section 2(2) and (3) are repealed.
3. Sections 4 and 7 repealed
Sections 4 and 7 are repealed.
Division 2 — Constitution Acts Amendment
Act 1899
4. Schedule V amended
Schedule V Part 1 Division 1 to the Constitution Acts Amendment
Act 1899 is amended by inserting after the item relating to the Western
Australian Gas Disputes Arbitrator —
“
Member of the Native Title Commission established by the
Native Title (State Provisions) Act 1999.
”.
Division 3 — Financial Administration and
Audit Act 1985
5. Schedule 1 amended
Schedule 1 to the Financial Administration and Audit
Act 1985 is amended by inserting in the appropriate alphabetical
position the following —
“ Native Title Commission ”.
Division 4 — Land Administration
Act 1997
6. The Act amended
The amendments in this Division are to the Land Administration
Act 1997.
7. Section 6A inserted
After section 6 the following section is inserted in Part
1 —
“
6A. Renewal etc. of certain
tenures subject to Native Title (State Provisions)
Act 1999
(1) Where the exercise of a power under this Act to renew, re-grant or
extend a non-exclusive tenure of land is a Part 4 act within the meaning of the
Native Title (State Provisions) Act 1999, the exercise of the power
is subject to section 4.3 of that Act.
(2) In subsection (1) —
non-exclusive tenure of land means an interest
under —
(a) a lease;
(b) a licence; or
(c) other authority,
that permits the use of the land but does not confer a right of exclusive
possession.
”.
8. Section 151 amended
Section 151(1) is amended as follows:
(a) by inserting in the appropriate alphabetical positions the following
definitions —
“
approved determination of native title means
an approved determination of native title under the NTA
where —
(a) the effect of the determination is that the person
concerned —
(i) holds native title; or
(ii) immediately before the taking, held native title,
in relation to the land affected by the taking;
(b) it is apparent from the terms of, or reasons for, the determination
that the person concerned held native title in relation to the land affected by
the taking immediately before the taking; or
(c) it is not apparent from the terms of, or reasons for, the
determination that native title did not exist in relation to the land affected
by the taking immediately before the taking;
registered native title body corporate and registered
native title claimant have the same meaning as they have in the
NTA;
”;
(b) in the definition of “proprietor” in paragraph (b) by
inserting after “registered” —
“
, or a registered native title body corporate or
registered native title claimant in relation to the land
9. Section 152A inserted
After section 152 the following section is inserted —
“
152A. This Part subject to
Native Title (State Provisions) Act 1999
Where the taking of land or an interest in land under this Part is a Part
2 act, a Part 3 act or a Part 4 act within the meaning of the Native Title
(State Provisions) Act 1999, the operation of this Part is subject to
section 2.6, 3.5 or 4.3, as the case may be, of that Act.
”.
10. Section 153 amended
Section 153(3) is amended in paragraph (a) of the definition of
“in accordance with the NTA” as follows:
(a) by deleting “5” in the 3 places where it occurs and
inserting instead —
“ 4 ”;
(b) by deleting “1998” and inserting
instead —
“ 1999 ”.
11. Section 154 amended
(1) Section 154(1)(b) is deleted and the following paragraph is
inserted instead —
“
(b) the taking of those interests would be a compulsory
acquisition that is referred to in section 26(1)(c)(iii) of the
NTA.
”.
(2) Section 154(3) is amended in the definition of “in
accordance with the NTA” as follows:
(a) in paragraph (a) —
(i) by deleting “Part 3” in the 3 places where it occurs and
inserting instead —
“ Part 2 ”;
(ii) by deleting “1998” and inserting
instead —
“ 1999 ”;
(b) in paragraph (b) —
(i) by deleting “4” in the 3 places where it occurs and
inserting instead —
“ 3 ”;
(ii) by deleting “1998” and inserting
instead —
“ 1999 ”.
12. Section 156 amended
After section 156(2) the following subsection is
inserted —
“
(2a) The entitlement of native title holders to
compensation under Part 10 is an entitlement to compensation on just terms for
any loss, diminution or impairment of, or other effect of the taking on, their
native title rights and interests.
”.
13. Section 157 amended
Section 157 is amended by inserting after “native title
holders” —
“ or a registered native title body corporate
”.
14. Section 158 repealed
Section 158 is repealed.
15. Section 162 amended
(1) Section 162(2) is amended by deleting “In” and
inserting instead —
“ Subject to subsection (3), in ”.
(2) After section 162(2) the following subsection is
inserted —
“
(3) Subsection (2) does not apply if the interest taken is a native
title right or interest.
”.
16. Section 163 amended
Section 163 is amended by deleting “of the Minister or of the
principal proprietor of the land.” and inserting instead —
“
of —
(c) the Minister;
(d) the principal proprietor of the land; or
(e) if there is a registered native title body corporate or registered
native title claimant in relation to the land, that body corporate or
claimant.
”.
17. Section 170 amended
Section 170(5)(b) is amended by inserting after “occupier of
the land” —
“
, any registered native title body corporate or registered
native title claimant in relation to the land,
”.
18. Section 175 amended
Section 175(1)(a) is amended after subparagraph (ii) by
deleting “or” and inserting instead —
“
(iia) any registered native title body corporate or
registered native title claimant in relation to land affected by the
notice;
(iib) the holder of any native title rights and interests in land affected
by the notice; or
”.
19. Section 176 amended
Section 176(1) is amended by deleting “, a lease of Crown land
or” and inserting instead —
“ or a lease of Crown land or the holders of
”.
20. Section 182 amended
Section 182(2) is amended by deleting “and to” and
inserting instead —
“
any registered native title body corporate or registered
native title claimant, and
”.
21. Section 183 amended
Section 183(2)(a) is amended by deleting “and to” and
inserting instead —
“
any registered native title body corporate or registered
native title claimant, and
”.
22. Section 184 amended
Section 184(3) is amended by deleting “and to” and
inserting instead —
“
any registered native title body corporate or registered
native title claimant, and
”.
23. Section 185 amended
Section 185(3) is amended by deleting “and to” and
inserting instead —
“
any registered native title body corporate or registered
native title claimant in relation to the land, and
”.
24. Section 186 amended
Section 186(3)(a) is amended by deleting “and to” and
inserting instead —
“
any registered native title body corporate or registered
native title claimant, and
”.
25. Section 206 amended
Section 206 (1) is amended by inserting after “interest in
land” —
“ , other than a native title right or
interest, ”.
26. Section 207 amended
After section 207(2) the following subsection is
inserted —
“
(2a) The time limit (whether it has expired or not) under this section
must, on the application of a person who wishes to make a claim in respect of
the taking of native title rights and interests, be extended if an approved
determination of native title is made in relation to the land to which the claim
relates.
”.
27. Section 212 amended
After section 212(2) the following subsection is
inserted —
“
(3) If the acquiring authority does transfer property,
provide goods and services or provide another form of compensation in accordance
with a request —
(a) the transfer of property, provision of goods and services or provision
of another form of compensation constitutes full or part compensation under this
Part, as the case may be; and
(b) the entitlement to compensation is taken to have been determined in
accordance with the provisions of this Part.
”.
28. Section 214 amended
(1) Section 214(2) is amended by deleting “If” and
inserting instead —
“ Subject to subsection (3), if ”.
(2) After section 214(2) the following subsection is
inserted —
“
(3) Subsection (2) does not operate to bar a claim in
respect of native title rights and interests if —
(a) during or after the 60 day period, or any extended time, referred
to in that subsection an approved determination of native title is made in
relation to the land to which the claim relates; and
(b) the particulars required under this section are furnished within
60 days after that determination is made.
”.
29. Section 216 amended
(1) Section 216(1) is amended by inserting after “A claimant
may,” —
“ subject to subsection (4), ”.
(2) After section 216(3) the following subsection is
inserted —
“
(4) An application cannot be made under subsection (1)
if the notice disputing the title of the claimant relates to native title rights
and interests.
”.
30. Section 217 amended
Section 217(2) is amended as follows:
(a) by deleting the passage beginning “If a judgment” and
ending “under dispute,” and inserting instead —
“
If —
(a) a judgment of the Supreme Court under section 216 confirms, in
whole, or in part, a claimant’s title to an interest in land under
dispute; or
(b) in the case of a claimant to whom section 216(4) applies, an
approved determination of native title is made in relation to the
claimant,
”;
(b) by inserting after “confirmed” —
“ or determined ”.
31. Section 221 amended
Section 221(2)(b) is deleted and the following paragraph is inserted
instead —
“
(b) if the title of the claimant was disputed
then —
(i) if the Supreme Court confirmed the claimant’s title, in whole or
in part, under section 216 — the day of the judgment;
or
(ii) if an approved determination of native title was made in relation to
the claimant — the day of the determination.
”.
32. Section 223 amended
Section 223(7) is amended by deleting “the judgment of the
Supreme Court on that issue under section 216” and inserting
instead —
“
—
(a) the judgment of the Supreme Court on that issue under
section 216; or
(b) in the case of a claimant to whom section 216(4) applies, the
outcome of any native title determination application made by the claimant under
section 61 of the NTA.
”.
33. Section 224 amended
Section 224(7) is amended by deleting “the judgment of the
Court under section 216” and inserting instead —
“
—
(a) the judgment of the Supreme Court under section 216; or
(b) in the case of a claimant to whom section 216(4) applies, the
outcome of any native title determination application made by the claimant under
section 61 of the NTA.
”.
34. Section 241 amended
(1) Section 241(1) is amended by deleting “taken under this
Part” and inserting instead —
“
, other than native title rights and interests, taken
under Part 9
”.
(2) After section 241(1) the following subsection is
inserted —
“
(1a) In determining the amount of compensation (if any) to
be offered, paid, or awarded for native title rights and interests taken under
Part 9, regard may be had to the matters referred to in this section.
”.
Division 5 — Mining Act 1978
35. The Act amended
The amendments in this Division are to the Mining Act 1978.
36. Section 19 amended
(1) Section 19(6)(a) is amended by inserting immediately before
“grant” the following —
“ subject to subsection (6a), ”.
(2) After section 19(6) the following subsection is
inserted —
“
(6a) If the grant of a mining tenement under
subsection (6) is a Part 2 act, a Part 3 act or a Part 4 act within the
meaning of the Native Title (State Provisions) Act 1999, the
operation of that subsection is subject to section 2.6, 3.5 or 4.3 of that
Act as the case may be.
”.
37. Section 39A inserted
Immediately before section 40 the following section is
inserted —
“
39A. This Division subject to
Native Title (State Provisions) Act 1999
(1) The operation of this Division is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999 where —
(a) the grant of a prospecting licence; or
(b) the grant of any mining tenement under section 56A,
is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of that
Act.
(2) The provisions of this Division relating to objections to the granting
of an application do not apply to an objection of the kind referred to in
section 2.16, 3.15 or 4.11 of the Native Title (State Provisions)
Act 1999, and objections of that kind can only be made under that
Act.
”.
38. Section 49 amended
After section 49(1) the following subsection is
inserted —
“
(1a) The operation of subsection (1) is subject to
section 2.6, 3.5 or 4.3, as the case may be, of the Native Title (State
Provisions) Act 1999.
”.
39. Section 56 amended
After section 56(1) the following subsection is
inserted —
“
(1a) An appeal does not lie under subsection (1) where
the warden does not grant an application, or attaches any condition to a grant,
because of one of the following instruments made under the Native Title
(State Provisions) Act 1999 —
(a) an agreement of the kind described in section 2.26, 3.22(1) or
4.21 that is given to the Commission under section 2.26, 3.25 or 4.21;
(b) a recommendation under section 2.32 or 4.27;
(c) a determination under section 2.38, 3.29, 3.44 or 4.33;
(d) a declaration under section 3.51.
”.
40. Section 56AA inserted
Immediately before section 56B the following section is
inserted —
“
56AA. This Division subject
to Native Title (State Provisions) Act 1999
(1) The operation of this Division is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999 where —
(a) the grant or extension of an exploration licence; or
(b) the grant of any mining tenement under section 70,
is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of that
Act.
(2) The provisions of this Division relating to objections to the granting
of an application do not apply to an objection of the kind referred to in
section 2.16, 3.15 or 4.11 of the Native Title (State Provisions)
Act 1999, and objections of that kind can only be made under that
Act.
”.
41. Section 67 amended
After section 67(1) the following subsection is
inserted —
“
(1a) The operation of subsection (1) is subject to
section 2.6, 3.5 or 4.3, as the case may be, of the Native Title (State
Provisions) Act 1999.
”.
42. Section 70AA inserted
After section 70A the following section is
inserted —
“
70AA. This Division subject
to Native Title (State Provisions) Act 1999
(1) The operation of this Division is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999 where the grant or renewal of a retention licence is a Part 2
act, a Part 3 act or a Part 4 act within the meaning of that Act.
(2) The provisions of this Division relating to objections to the granting
of an application do not apply to an objection of the kind referred to in
section 2.16, 3.15 or 4.11 of the Native Title (State Provisions)
Act 1999, and objections of that kind can only be made under that
Act.
”.
43. Section 70L amended
After section 70L(1) the following subsection is
inserted —
“
(1a) The operation of subsection (1) is subject to
section 2.6, 3.5 or 4.3, as the case may be, of the Native Title (State
Provisions) Act 1999.
”.
44. Section 70O inserted
Immediately before section 71 the following section is
inserted —
“
70O. This Division subject to
Native Title (State Provisions) Act 1999
(1) Where —
(a) the grant or renewal of a mining lease; or
(b) the grant of any mining tenement under section 85B,
is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of the
Native Title (State Provisions) Act 1999, the operation of the
provisions of this Division relating to that grant or renewal is subject to
section 2.6, 3.5 or 4.3, as the case may be, of that Act.
(2) The provisions of this Division relating to objections to the granting
of an application do not apply to an objection of the kind referred to in
section 2.16, 3.15 or 4.11 of the Native Title (State Provisions)
Act 1999, and objections of that kind can only be made under that
Act.
”.
45. Section 75 amended
After section 75(7) the following subsection is
inserted —
“
(8) The operation of subsection (7) is subject to
section 2.6, 3.5 or 4.3, as the case may be, of the Native Title (State
Provisions) Act 1999.
”.
46. Section 85C inserted
Immediately before section 86 the following section is
inserted —
“
85C. This Division subject to
Native Title (State Provisions) Act 1999
(1) The operation of this Division in relation to the grant of general
purpose leases is subject to section 2.6, 3.5 or 4.3, as the case may be,
of the Native Title (State Provisions) Act 1999.
(2) Where the renewal of a general purpose lease is a Part 2 act, a Part 3
act or a Part 4 act within the meaning of the Native Title (State Provisions)
Act 1999, the operation of this Division in relation to that renewal is
subject to section 2.6, 3.5 or 4.3, as the case may be, of that
Act.
(3) The provisions relating to objections to the granting of an
application that apply for the purposes of this Division do not apply to an
objection of the kind referred to in section 2.16, 3.15 or 4.11 of the
Native Title (State Provisions) Act 1999, and objections of that
kind can only be made under that Act.
”.
47. Section 90A inserted
Immediately before section 91 the following section is
inserted —
“
90A. This Division subject to
Native Title (State Provisions) Act 1999
(1) The operation of this Division is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999 where the grant of a miscellaneous licence is a Part 2 act, a
Part 3 act or a Part 4 act within the meaning of that Act.
(2) The provisions relating to objections to the granting of an
application that apply for the purposes of this Division do not apply to an
objection of the kind referred to in section 2.16, 3.15 or 4.11 of the
Native Title (State Provisions) Act 1999, and objections of that
kind can only be made under that Act.
”.
Division 6 — Parliamentary Commissioner
Act 1971
48. Schedule 1 amended
Schedule 1 to the Parliamentary Commissioner Act 1971 is
amended by inserting in the appropriate alphabetical position the
following —
“
The Native Title Commission established by the Native Title (State
Provisions) Act 1999.
”.
Division 7 — Petroleum Act 1967
49. The Act amended
The amendments in this Division are to the Petroleum
Act 1967.
50. Section 5 amended
After section 5(8) the following subsection is
inserted —
“
(9) If the exercise of the power conferred by
subsection (8) to amend or vary any instrument is a Part 2 act, a
Part 3 act or a Part 4 act within the meaning of the Native Title (State
Provisions) Act 1999 that exercise is subject to section 2.6, 3.5
or 4.3, as the case may be, of that Act.
”.
51. Section 11 amended
After section 11(1) the following subsection is
inserted —
“
(1a) If any act to be done under subsection (1) is a
Part 2 act, a Part 3 act or a Part 4 act within the meaning of the Native
Title (State Provisions) Act 1999, the operation of that subsection is
subject to section 2.6, 3.5 or 4.3, as the case may be, of that
Act.
”.
52. Section 28B inserted
Immediately before section 29 the following section is
inserted —
“
28B. This Division subject to
Native Title (State Provisions) Act 1999
The operation of this Division is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999 where the grant, renewal or extension of an exploration permit
or a drilling reservation is a Part 2 act, a Part 3 act or a Part 4 act within
the meaning of that Act.
”.
53. Section 48AA inserted
Immediately before section 48A the following section is
inserted —
“
48AA. This Division subject
to Native Title (State Provisions) Act 1999
The operation of this Division is subject to section 2.6, 3.5 or
4.3, as the case may be, of the Native Title (State Provisions)
Act 1999 where the grant or renewal of a retention lease is a Part 2
act, a Part 3 act or a Part 4 act within the meaning of that Act.
”.
54. Section 48L inserted
Immediately before section 49 the following section is
inserted —
“
48L. This Division subject to
Native Title (State Provisions) Act 1999
Where the grant or renewal of a production licence is a Part 2 act, a
Part 3 act or a Part 4 act within the meaning of the Native Title (State
Provisions) Act 1999, the operation of the provisions of this Division
relating to that grant or renewal is subject to section 2.6, 3.5 or 4.3, as
the case may be, of that Act.
”.
55. Section 105 amended
After section 105(3) the following subsection is
inserted —
“
(3a) Where the grant of a special prospecting authority
under subsection (3) is a Part 2 act, a Part 3 act or a Part 4 act within
the meaning of the Native Title (State Provisions) Act 1999, the
operation of that subsection is subject to section 2.6, 3.5 or 4.3, as the
case may be, of that Act.
”.
56. Section 106 amended
After section 106(3) the following subsection is
inserted —
“
(3a) Where the grant of an access authority under
subsection (3) is a Part 2 act, a Part 3 act or a Part 4 act within the
meaning of the Native Title (State Provisions) Act 1999, the
operation of that subsection is subject to section 2.6, 3.5 or 4.3, as the
case may be, of that Act.
”.
57. Section 116 amended
After section 116(1) the following subsection is
inserted —
“
(1a) Where the giving of a consent under
subsection (1) is a Part 2 act, a Part 3 act or Part 4 act within the
meaning of the Native Title (State Provisions) Act 1999, the
operation of that subsection is subject to section 2.6, 3.5 or 4.3, as the
case may be, of that Act.
”.
Division 8 — Petroleum Pipelines
Act 1969
58. The Act amended
The amendments in this Division are to the Petroleum Pipelines
Act 1969.
59. Section 10A inserted
After section 10 the following section is
inserted —
“
10A. Licence not to affect
native title
(1) A licence is not to be taken to authorize the licensee or any other
person to do any act that affects native title.
(2) In subsection (1) —
affects and native title have the meanings
given to them respectively by sections 227 and 223 of the Native Title
Act 1993 of the Commonwealth.
”.
60. Section 19 amended
After section 19(1) the following subsection is
inserted —
“
(1a) Where the taking of land or an easement in land under
subsection (1) is a Part 2 act, a Part 3 act or Part 4 act within the
meaning of the Native Title (State Provisions) Act 1999, the
operation of that subsection is subject to section 2.6, 3.5 or 4.3, as the
case may be, of that Act.
”.
”.