in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc. and native title) of Part 2; or

by validating past acts, or intermediate period acts, in relation to the native title.

for a determination of native title in relation to an area for which there is no approved determination of native title; or

to revoke or vary an approved determination of native title on the grounds set out in subsection (5).

Native title determinations by Federal Court when determining compensation entitlements

the Federal Court is making a determination of compensation in accordance with Division 5; and

an approved determination of native title has not previously been made in relation to the whole or part of the area concerned;

the Federal Court must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made.

Approved determinations of native title

a determination of native title made on an application under paragraph (1)(a) or in accordance with subsection (2);

an order, judgment or other decision of a recognised State/Territory body that involves a determination of native title in relation to an area within the jurisdictional limits of the State or Territory.

Variation or revocation of determinations

the Federal Court, in determining an application under Part 3; or

a recognised State/Territory body in an order, judgment or other decision;

then:

(c) in the case of a variation—the determination as varied becomes an approved determination of native title in place of the original; and

in the case of a revocation—the determination is no longer an approved determination of native title.

Grounds for variation or revocation

that events have taken place since the determination was made that have caused the determination no longer to be correct; or

that the interests of justice require the variation or revocation of the determination; or

that the determination relates to an area in relation to which the agreement required by paragraph 47C(1)(b) has been given.

Review or appeal

a determination of the Federal Court; or

an order, judgment or other decision of a recognised State/Territory body;

is subject to any review or appeal, this section refers to the determination, order, judgment or decision as affected by the review or appeal, when finally determined.

High Court determinations

took place before 1 January 1994; and

would otherwise be invalid because of native title.

This Division also covers certain acts done after that day consisting of an extension or renewal etc. of an act done before that day.

the grant or issue of any lease, licence, permit or authority; or

the creation of any interest in relation to land or waters;

under any legislation concerned, unless the grant, issue or creation is itself a past act attributable to the Commonwealth.

if it is a category A past act other than one to which subsection 229(4) (which deals with public works) applies—the act extinguishes the native title concerned; and

if it is a category A past act to which subsection 229(4) applies:

in any case—the act extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and

if paragraph 229(4)(a) applies—the extinguishment is taken to have happened on 1 January 1994; and

if it is a category B past act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned—the act extinguishes the native title to the extent of the inconsistency; and

if it is a category C past act or a category D past act—the non-extinguishment principle applies to the act.

the native title concerned is to some extent in relation to an onshore place and the act could not have been validly done on the assumption that the native title holders instead held ordinary title to:

any land concerned; and

the land adjoining, or surrounding, any waters concerned; or

the native title concerned is to some extent in relation to an offshore place; or

the native title concerned relates either to land or to waters and the similar compensable interest test is satisfied in relation to the act.

Compensation for partial effect of act

the grant or issue of any lease, licence, permit or authority; or

the creation of any interest in relation to land or waters;

under any legislation concerned, unless the grant, issue or creation is itself a past act attributable to the State or Territory.

took place on or after 1 January 1994 but on or before 23 December 1996; and

would otherwise be invalid to any extent because they fail to pass any of the future act tests in Division 3 of Part 2 or for any other reason because of native title.

a grant of a freehold estate or a lease (other than a mining lease); or

a public work;

over any of the land or waters concerned.

an act that is attributable to the Commonwealth consists of:

the creation of a right to mine; or

the variation of such a right to extend the area to which it relates; or

the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and

the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and

at any time before the act was done, either:

a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or

a public work was constructed or established on any of the land or waters affected by the act;

the Commonwealth must, before the end of 6 months after this section commences:

give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and

notify the public in the determined way of the details set out in subsection (2).

Details

the date on which the act was done; and

the kind of mining involved; and

sufficient information to enable the area affected by the act to be identified; and

information about the way in which further details about the act may be obtained.

Subdivision C—Acts attributable to a State or Territory

an act that is attributable to a State or Territory consists of:

the creation of a right to mine; or

the variation of such a right to extend the area to which it relates; or

the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and

the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and

at any time before the act was done, either:

a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or

a public work was constructed or established on any of the land or waters affected by the act;

the State or Territory must, before the end of 6 months after the commencement of the law of the State or Territory that validates intermediate period acts attributable to the State or Territory in accordance with section 22F:

give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and

notify the public in the determined way of the details set out in subsection (2).

Details

the date on which the act was done; and

the kind of mining involved; and

sufficient information to enable the area affected by the act to be identified; and

information about the way in which further details about the act may be obtained.

it is valid (including because of Division 2 or 2A of Part 2); and

it took place on or before 23 December 1996; and

it consists of the grant or vesting of any of the following:

a Scheduled interest (see section 249C);

a freehold estate;

a commercial lease that is neither an agricultural lease nor a pastoral lease;

an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);

a residential lease;

a community purposes lease (see section 249A);

what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to “1 January 1994” were instead a reference to “24 December 1996”;

any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

Vesting of certain land or waters to be covered by paragraph (2)(c)

by or under legislation of a State or a Territory, particular land or waters are vested in any person; and

a right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation;

the vesting is taken for the purposes of paragraph (2)(c) to be the vesting of a freehold estate over the land or waters.

Construction of public works commencing on or before 23.12.1996

it is valid (including because of Division 2 or 2A); and

it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996.

Exclusion of acts benefiting Aboriginal peoples or Torres Strait Islanders

the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (a) or (b) is in effect in relation to the land or waters.

Exclusion of national parks etc.

unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters; or

if the grant or vesting does not, apart from this Act, extinguish native title in relation to the land or waters—unless and until the land or waters are (whether before or after 23 December 1996) used to any extent in a way that, apart from this Act, extinguishes native title in relation to the land or waters.

Exclusion by regulation

the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned; and

the extinguishment is taken to have happened when the act was done.

Public works

the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated; and

the extinguishment is taken to have happened when the construction or establishment of the public work began.

Other extinguishment provisions do not apply

it is valid (including because of Division 2 or 2A of Part 2); and

it takes place on or before 23 December 1996; and

(c) it consists of the grant of a non-exclusive agricultural lease (see (see section 248B).section 247B) or a non-exclusive pastoral lease

Acts after 23.12.96

it takes place after 23 December 1996; and

it would be a previous non-exclusive possession act under subsection (2) if that subsection were not limited in its application to acts taking place on or before 23 December 1996; and

it takes place:

in exercise of a legally enforceable right created by any act done on or before 23 December 1996; or

in good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made.

Exclusion by regulation

to the extent that the act involves the grant of rights and interests that are not inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned, the rights and interests granted, and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them; and

to the extent that the act involves the grant of rights and interests that are inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned:

if, apart from this Act, the act extinguishes the native title rights and interests—the native title rights and interests are extinguished; and

in any other case—the native title rights and interests are suspended while the lease concerned, or the lease as renewed, re-made, re-granted or extended, is in force; and

any extinguishment under this subsection is taken to have happened when the act was done.

Exclusion of certain acts

section 24FA (future acts where procedures indicate absence of native title);

section 24GB (acts permitting primary production on non-exclusive agricultural or pastoral leases);

section 24GD (acts permitting off-farm activities directly connected to primary production activities);

section 24GE (granting rights to third parties etc. on non-exclusive agricultural or pastoral leases);

section 24HA (management of water and airspace);

section 24IA (acts involving renewals and extensions etc. of acts);

section 24JAA (public housing etc.);

section 24JA (acts involving reservations, leases etc.);

section 24KA (acts involving facilities for services to the public);

section 24LA (low impact future acts);

section 24MD (acts that pass the freehold test—but see subsection (5));

section 24NA (acts affecting offshore places).

Right to negotiate

if the act is notified in accordance with subsections 24JAA(10) to (12), it is not covered, to that extent, by section 24KA; and

if the act is not notified in accordance with subsections 24JAA(10) to (12), it is not covered, to that extent, by section 24JAA.

there is an approved determination of native title to the effect that native title does not exist in relation to part of the area; or

part of the area was expressly excluded from the area covered by an approved determination of native title because of subsection 61A(2) (restrictions on making of certain applications);

it is not necessary for there to be a registered native title body corporate for that part of the area in order to satisfy subsection (1).

must inform at least one of the representative Aboriginal/Torres Strait Islander bodies of its intention to enter into the agreement; and

may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement.

the Commonwealth Minister;

if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;

any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;

any local government body for the area covered by the agreement;

any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate.

Content of notice

identify the area covered by the agreement, whether by including a map or otherwise; and

state the name of each party to the agreement and the address at which the party can be contacted; and

set out:

any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b), (c) or (d) or 24EBA(1)(a); or

a summary of any statements included in the agreement that are of that kind, together with information about where further detail about the statements may be obtained.

Notice to specify day

a representative Aboriginal/Torres Strait Islander body for any of the area advises the Registrar, within 1 month after the notification day, that the requirements of paragraph 24BD(4)(a) were not complied with in relation to the agreement; and

the Registrar is satisfied that the requirements were not complied with.

Subdivision C—Indigenous land use agreements (area agreements)

all registered native title claimants in relation to land or waters in the area; and

all registered native title bodies corporate in relation to land or waters in the area; and

(c) if, for any part (the non-claimed/determined part) of the land or waters in the area, there is neither a registered native title claimant nor a registered native title body corporate—one or more of the following:

any person who claims to hold native title in relation to land or waters in the non-claimed/determined part;

any representative Aboriginal/Torres Strait Islander body for the non-claimed/determined part.

a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or

if conditions under the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement.section 251BA on

any person who claims to hold native title in relation to land or waters in the area;

any representative Aboriginal/Torres Strait Islander body for the area.

Other native title parties

any other person who claims to hold native title in relation to land or waters in the area;

any representative Aboriginal/Torres Strait Islander body for the area.

Government parties

must inform at least one of the representative Aboriginal/Torres Islander bodies of its intention to enter into the agreement; and

may consult any such representative Aboriginal/Torres Strait Islander bodies about the agreement.

have been certified by all representative Aboriginal/Torres Strait Islander bodies for the area in performing their functions under paragraph 203BE(1)(b) in relation to the area; or

include a statement to the effect that the following requirements have been met:

all reasonable efforts have been made (including by consulting all representative Aboriginal/Torres Strait Islander bodies for the area) to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified;

all of the persons so identified have authorised the making of the agreement;

any conditions under the authority that relate to the making of the agreement have been satisfied;section 251BA on

together with a further statement briefly setting out the grounds on which the Registrar should be satisfied that the requirements are met.

Registrar may assist parties

give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:

the Commonwealth Minister;

if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;

any representative Aboriginal/Torres Strait Islander body for the area covered by the agreement;

any local government body for the area covered by the agreement;

any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and

notify the public in the determined way of the agreement in accordance with subsection (2).

Content of notice

identify the area covered by the agreement, whether by including a map or otherwise; and

state the name of each party to the agreement and the address at which the party can be contacted; and

set out:

any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b), (c) or (d) or 24EBA(1)(a); or

a summary of any statements included in the agreement that are of that kind, together with information about where further detail about the statements may be obtained; and

(d) include a statement that, within the period (the notice period) of 3 months after the notification day (see subsection (3)):

if the application was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a))—any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may object, in writing to the Registrar, against registration of the agreement on the ground that the requirements of paragraph 203BE(5)(a), (b) or (c) were not satisfied in relation to the certification; or

if the application contained a statement as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying native title holders and ensuring that they have authorised the making of the agreement)—any person claiming to hold native title in relation to land or waters in the area covered by the agreement may wish, in response to the notice, to make a native title determination application or equivalent application under a law of a State or Territory.

Notice to specify day

no objection under section 24CI against registration of the agreement was made within the notice period; or

one or more objections under section 24CI against registration of the agreement were made within the notice period, but they have all been withdrawn; or

one or more objections under the Registrar that the requirements of paragraph 203BE(5)(a), (b) or (c) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned.section 24CI against registration of the agreement were made within the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied

Second condition

the persons making the objections mentioned in that paragraph; and

the representative Aboriginal/Torres Strait Islander bodies that certified the application;

and may, but need not, take into account any other matter or thing.

any person who is, at the end of the notice period, a registered native title body corporate in relation to any of the land or waters in the area covered by the agreement; and

any applicant who is, at the end of the notice period, a registered native title claimant in relation to any of the land or waters in the area covered by the agreement; and

any applicant who, after the end of the notice period, becomes a registered native title claimant in relation to any of the land or waters in the area covered by the agreement, where the application containing the claim was made before the end of the notice period and:

the claim is accepted by the Registrar for registration under subsection 190A(6) or is (otherwise than on appeal or review) found to satisfy conditions equivalent to those set out in sections 190B and 190C under a law of a State or Territory; or

the claim is accepted by the Registrar for registration as a result of an application under subsection 190F(1), where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

the claim is accepted by the Registrar for registration as a result of notification given to the Registrar by the NNTT under section 190E on application under that section, where the application was made not more than 28 days after the notice under subsection 190D(1) was given; or

the claim is found to satisfy conditions equivalent to those set out in sections 190B and 190C under a provision of a law of a State or Territory to similar effect as section 190E or 190F, and the application under that provision was made within a time period corresponding to that set out in subparagraph (ii) of this paragraph.

a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or

if conditions under the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement.section 251BA on

the statements in the application; and

any information the Registrar is given on the matter by any representative Aboriginal/Torres Strait Islander body or by any other body or person;

and may, but need not, take into account any other matter or thing.

Subdivision D—Indigenous land use agreements (alternative procedure agreements)

all registered native title bodies corporate in relation to land or waters in the area; and

all representative Aboriginal/Torres Strait Islander bodies for the area.

Relevant government

the Commonwealth, if any of the area covered by the agreement is a place outside the jurisdictional limits of the States and Territories;

a State or Territory, if any of the area covered by the agreement is within the jurisdictional limits of the State or Territory.

Other parties

any registered native title claimant in relation to land or waters in the area;

any other person who claims to hold native title in relation to land or waters in the area;

any other person.

a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or

if conditions under the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement.section 251BA on

give notice of the agreement, in accordance with subsection (2), to any of the following who are not parties to the agreement:

the Commonwealth Minister;

if the agreement covers an area within the jurisdictional limits of a State or Territory—the State Minister or the Territory Minister for the State or Territory;

any local government body for the area covered by the agreement;

any other person whom the Registrar, having regard to the nature of the agreement, considers appropriate; and

notify the public in the determined way of the agreement in accordance with subsection (2).

Content of notice

identify the area covered by the agreement, whether by including a map or otherwise; and

state the name of each party to the agreement and the address at which the party can be contacted; and

set out:

any statements included in the agreement that are of a kind mentioned in paragraph 24EB(1)(b) or (c) or 24EBA(1)(a); or

a summary of any statements included in the agreement that are of that kind, together with information about where further detail about the statements may be obtained; and

(d) include a statement that, within the period (the notice period) of 3 months after the notification day (see subsection (3)), any person claiming to hold native title in relation to any of the land or waters in the area covered by the agreement may:

obtain a copy of the agreement from the Registrar; and

object, in writing to the Registrar, against registration of the agreement on the ground that it would not be fair and reasonable to do so.

Notice to specify day

no objection against registration of the agreement was made within the notice period; or

one or more objections against registration of the agreement were made within the notice period, but they have all been withdrawn; or

one or more objections against registration of the agreement were made during the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the NNTT or a recognised State/Territory body that it would not be fair and reasonable to register the agreement, having regard to:

the content of the agreement; and

the effect of the agreement on native title rights and interests; and

any benefits provided under the agreement to current native title holders (whether or not identified at the time the agreement is made) and their successors, and the way in which those benefits are to be distributed; and

any other relevant circumstance.

it were a contract among the parties to the agreement; and

all persons holding native title in relation to any of the land or waters in the area covered by the agreement, who are not already parties to the agreement, were bound by the agreement in the same way as the registered native title bodies corporate, or the native title group, as the case may be.

Only certain persons bound by agreement

a future act is done; and

when it is done, there are on the Register of Indigenous Land Use Agreements details of an agreement that includes a statement to the effect that the parties consent to:

the doing of the act or class of act in which the act is included; or

the doing of the act, or class of act in which the act is included, subject to conditions; and

if the act is, apart from this Subdivision, an act to which Subdivision P (which deals with the right to negotiate) applies—the agreement also includes a statement to the effect that Subdivision P is not intended to apply; and

if the act is the surrender of native title under an agreement covered by Subdivision B or C—the agreement also includes a statement to the effect that the surrender is intended to extinguish the native title rights and interests.

Validation of act

any registered native title body corporate who is a party to the agreement;

any common law holder of native title:

for whom such a registered native title body corporate holds native title rights and interests on trust; or

of whom such a registered native title body corporate is the agent or representative;

any native title holder who is entitled to any of the benefits provided under the agreement.

Restriction on compensation where Subdivision C agreement

any native title holder who is entitled to any of the benefits provided under the agreement;

any native title holder who authorised the making of the agreement as mentioned in:

if the application was certified by representative Aboriginal/Torres Strait Islander bodies as mentioned in paragraph 24CG(3)(a)—paragraph 203BE(5)(b); or

if the application included statements as mentioned in paragraph 24CG(3)(b) to the effect that certain requirements have been met (in summary, relating to identifying all native title holders and ensuring that they have authorised the making of the agreement)—that paragraph.

Restriction on compensation where Subdivision D agreement

he or she is entitled, in accordance with Division 5, to compensation for the act; and

he or she may recover the compensation from:

if subparagraph (ii) does not apply—the Crown in right of the Commonwealth, a State or a Territory (according to whether the act is attributable to the Commonwealth, the State or the Territory); or

any person or persons who, under an agreement in writing with the Commonwealth, the State or the Territory, are liable to pay the compensation.

details are on the Register of Indigenous Land Use Agreements of an agreement that includes a statement to the effect that the parties agree to:

the validating of a particular future act (other than an intermediate period act), or future acts (other than intermediate period acts) included in classes, that have already been done invalidly; or

the validating, subject to conditions, of a particular future act (other than an intermediate period act), or of future acts (other than intermediate period acts) included in classes, that have already been done invalidly; or

changing the effects, that are provided for by section 22B (which relates to native title rights and interests) or by a law of a State or Territory that contains provisions to the same effect, of an intermediate period act or of intermediate period acts included in classes; and

whichever of the Commonwealth, the State or the Territory to which the act or class of acts is attributable is a party to the agreement; and

where, whether under the agreement or otherwise, a person other than the Crown in right of the Commonwealth, a State or a Territory is or may become liable to pay compensation in relation to the act or class of acts—that person is a party to the agreement.

Commonwealth future acts valid

the act or class of acts is the surrender of native title; and

the agreement includes a statement to the effect that the surrender is intended to have extinguished the native title rights and interests.

Compensation consequences of future acts

the validity of a future act validated by subsection (2) or a law of a State or Territory mentioned in subsection (3); or

the effects of an intermediate period act that have been changed under subsection (6).

have been agreed to by the parties to the agreement; and

have been notified to the Registrar in writing by the parties;

but only so far as the amendments:

update property descriptions, but not so as to result in the inclusion of any area of land or waters not previously covered by the agreement; or

update a description identifying a party to the agreement, including where a party has assigned or otherwise transferred rights or liabilities under the agreement; or

do a thing specified in a legislative instrument made under subsection (3).

any future act by any person in relation to the area that is done at that time is valid; and

if such an act extinguishes native title to any extent—the native title holders are entitled to compensation, in accordance with Division 5, for the act in so far as it has that effect; and

if the act mentioned in paragraph (a) does not so extinguish native title and the native title holders would be entitled to compensation under subsection 17(2) for the act on the assumption that it was a past act referred to in that subsection—they are entitled, in accordance with Division 5, to compensation for the act.

Who pays compensation

if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

cultivating land;

maintaining, breeding or agisting animals;

taking or catching fish or shellfish;

forest operations (defined in section 253);

(e) horticultural activities (see horticulture);section 253 for the definition of

aquacultural activities;

leaving fallow or de-stocking any land in connection with the doing of any thing that is a primary production activity.

Mining excluded

a non-exclusive agricultural lease (see 23 December 1996; andsection 247B) or non-exclusive pastoral lease (see section 248B) was granted on or before

the grant was valid (including because of Division 2 or 2A); and

the future act takes place after 23 December 1996; and

the future act permits or requires the carrying on of any of the following while the lease (including as renewed on one or more occasions) is in force:

a primary production activity (see section 24GA) on the area covered by the lease; or

another activity, on the area covered by the lease, that is associated with or incidental to a primary production activity covered by subparagraph (i), provided that, when the other activity is being carried on, the majority of the area covered by the lease is used for primary production activities; and

the future act could have been validly done or authorised at some time before 31 March 1998, if any native title in relation to the area covered by the lease had not then existed.

Farm tourism included

takes place after 23 December 1996; and

permits or requires a farm tourism activity in the area covered by a lease meeting the requirements of paragraphs (1)(a) and (b) while the lease is in force (including as renewed on one or more occasions).

Exception to subsection (2)

where the lease covered by paragraph (1)(a) is a non-exclusive pastoral lease covering an area greater than 5,000 hectares—the act has the effect that the majority of the area covered by the lease is required or permitted to be used for purposes other than pastoral purposes; or

in any case—the act converts a lease covered by paragraph (1)(a) into a lease conferring a right of exclusive possession, or into a freehold estate, over any of the land or waters covered by the lease.

Validation of act

if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

Notification

the primary production activity mentioned in subparagraph (1)(d)(i) or (ii) is forest operations, a horticultural activity or an aquacultural activity; or

the lease mentioned in paragraph (1)(a) is a non-exclusive pastoral lease and the primary production activity mentioned in subparagraph (1)(d)(i) or (ii) is an agricultural activity;

before the future act is done, the person proposing to do the act must:

notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the non-exclusive agricultural lease or non-exclusive pastoral lease that the act, or acts of that class, are to be done in relation to the particular land or waters; and

give them an opportunity to comment on the act or class of acts.

a non-exclusive agricultural lease (see 23 December 1996; andsection 247B) or non-exclusive pastoral lease (see section 248B) was granted on or before

the grant was valid (including because of Division 2 or 2A); and

the activity is the carrying on, after 23 December 1996 and while the lease (including as renewed on one or more occasions) is in force, of any of the following:

a primary production activity on the area covered by the lease; or

another activity, on the area covered by the lease, that is associated with or incidental to a primary production activity covered by subparagraph (i), provided that, when the other activity is being carried on, the majority of the area covered by the lease is used for primary production activities; and

at some time before 31 March 1998, the activity could have been done under any legislation then in force, or under any lease, licence, permit or authority that could have then been issued, in relation to the area covered by the lease, if any native title in relation to the area covered by the lease had not then existed.

Activities prevail over native title etc.

the doing of any activity mentioned in paragraph (1)(c) prevails over any native title rights and interests and any exercise of those rights and interests, but does not extinguish them; and

the existence and exercise of native title rights and interests do not prevent the carrying on of any such activity.

Compensation

a freehold estate, an agricultural lease (see 23 December 1996; andsection 247) or a pastoral lease (see section 248) was granted on or before

the grant was valid (including because of Division 2 or 2A); and

the future act takes place after 23 December 1996; and

the future act is not:

the grant of a lease; or

any act that confers a right of exclusive possession over land; and

the future act permits or requires the carrying on of grazing, or an activity consisting of or relating to gaining access to or taking water, that:

takes place while the freehold estate exists or the agricultural lease or pastoral lease (including as renewed on one or more occasions) is in force; and

is directly connected to the carrying on of any primary production activity on the area covered by the freehold estate or the agricultural lease or pastoral lease; and

takes place in an area adjoining or near the area covered by the freehold estate or the agricultural lease or pastoral lease; and

does not prevent native title holders in relation to land or waters in the area in which the activity will be carried on from having reasonable access to the area; and

if:

before the future act is done, an approved determination of native title is made in relation to the land or waters on which any activity permitted or required by the future act takes place; and

the determination is that native title exists in relation to the land or waters and that the native title rights and interests confer exclusive possession of the land or waters on the native title holders;

the doing of the activity is not inconsistent with the exercise of the native title rights and interests.

Validation of act

if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

Notification

notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act that the act, or acts of that class, are to be done in relation to the land or waters concerned; and

give them an opportunity to comment on the act or class of acts.

a non-exclusive agricultural lease (see 23 December 1996; andsection 247B) or a non-exclusive pastoral lease (see section 248B) was granted on or before

the grant was valid (including because of Division 2 or 2A); and

the future act takes place after 23 December 1996 and while the lease (including as renewed on one or more occasions) is in force; and

the future act is not the grant of a lease; and

the future act confers on any person (including the lessee) a right:

to cut and remove timber; or

to extract, obtain or remove sand, gravel, rocks, soil or other resources (except so far as doing so constitutes mining);

from the area covered by the non-exclusive agricultural lease or non-exclusive pastoral lease; and

before the future act is done, the person proposing to do the act:

has notified, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the non-exclusive agricultural lease or non-exclusive pastoral lease that the act, or acts of that class, are to be done in relation to the particular land or waters; and

has given them an opportunity to comment on the act or class of acts.

Validation of act

if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

Subdivision H—Management of water and airspace

surface and subterranean water; or

living aquatic resources; or

airspace.

In this subsection, water means water in all its forms and management or regulation of water includes granting access to water, or taking water.

Leases, licences etc.

is valid (including because of this Act); and

relates to the management or regulation of:

surface and subterranean water; or

living aquatic resources; or

airspace.

In this paragraph, water means water in all its forms and management or regulation of water includes granting access to water, or taking water.

Validity of act

if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

Notification

notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act, or acts of that class, that the act, or acts of that class, are to be done; and

give them an opportunity to comment on the act or class of acts.

Subdivision I—Renewals and extensions etc.

it is:

the renewal; or

the re-grant or re-making; or

the extension of the term;

of a lease, licence, permit or authority (the original lease etc.) that is valid (including because of Division 2 or 2A); and

any of the following subparagraphs applies:

the original lease etc. was granted on or before 23 December 1996;

the grant of the original lease etc. was a permissible lease etc. renewal or a pre-existing right-based act;

the original lease etc. was created by an act covered by section 24GB, 24GD, 24GE or 24HA (which deal with certain acts in relation to primary production activities or involving management or regulation of water and airspace); and

the future act does not:

confer a right of exclusive possession over any of the land or waters covered by the original lease etc.; or

otherwise create a larger proprietary interest in the land or waters than was created by the original lease etc.; or

create a proprietary interest over any of the land or waters covered by the original lease etc., where the original lease etc. created only a non-proprietary interest; or

if the original lease etc. was a non-exclusive pastoral lease covering an area greater than 5,000 hectares and the majority of the area covered was not required or permitted to be used for purposes other than pastoral purposes—have the effect that the majority of the area covered by the renewed, re-granted, re-made or extended lease is required or permitted to be used for purposes other than pastoral purposes; and

if the original lease etc. contains, or is subject to, a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders—the renewed, re-granted, re-made or extended lease, licence, permit or authority contains, or is subject to, the same reservation or condition; and

if the original lease etc. did not permit mining—the renewed, re-granted, re-made or extended lease, licence, permit or authority does not permit mining.

Replacement by 2 or more leases etc.

for the purpose of subsection (1), the single grant is taken to be a renewal of the original leases etc.; and

paragraphs (1)(b) to (e) apply as if a reference in those paragraphs to the original lease etc. were a reference to the original leases etc.

Features that do not prevent a lease etc. from being a renewal

(a) an act from being the renewal, re-grant, re-making, or extension of the term, of a lease, licence, permit or authority (the old authority) for the purposes of subsection (1) (the renewed, re-granted, re-made or extended lease, licence, permit or authority being the new authority); or

(b) 2 or more leases, licences, permits or authorities (each of which is a new authority) from being granted in place of a single lease, licence, permit or authority (the old authority) for the purposes of subsection (2).

Features

the new authority, or the new authorities together, cover a smaller area than the old authority;

the term of the new authority, or of any of the new authorities, is longer than the term of the old authority;

the new authority or any of the new authorities is a perpetual lease (other than a mining lease);

if the new authority or any of the new authorities is a non-exclusive agricultural lease or a non-exclusive pastoral lease—the new authority permits or requires the carrying on of an activity that the old authority did not permit or require and that consists of:

a primary production activity (see section 24GA); or

another activity, on the area covered by the new authority or of any of the new authorities, that is associated with or incidental to a primary production activity, provided that, when the other activity is being carried on, the use of the majority of the area covered by the new authority, or the new authorities together, will be for primary production activities.

subject to Subdivision P (which deals with the right to negotiate), the act is valid; and

if the act consists of the grant of a freehold estate, or the conferral of a right of exclusive possession, over particular land or waters—the act extinguishes any native title in relation to the land or waters; and

in any other case—the non-extinguishment principle applies to the act; and

in any case—the native title holders are entitled to compensation for the act in accordance with Division 5.

Who pays compensation

if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

Notification

notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act that the act, or acts of that class, are to be done in relation to the land or waters concerned; and

give them an opportunity to comment on the act or class of acts.

Other procedural rights

the act is a permissible lease etc. renewal of a non-exclusive agricultural lease (see section 247B) or a non-exclusive pastoral lease (see section 248B); and

the act is covered by paragraph 24IC(4)(b) or (c);

subsection 24MD(6B) applies to the act as if the act were a compulsory acquisition, of the kind mentioned in that subsection, of native title rights and interests in relation to the land or waters that will be affected by the act, done by:

if the act is attributable to the Commonwealth—the Commonwealth; or

if the act is attributable to a State or Territory—that State or Territory.

Subdivision JA—Public housing etc.

it relates, to any extent, to an onshore place; and

it relates to:

an area over which a freehold estate exists or a lease is in force, or that is vested in any person, where the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

an area that is held expressly for the benefit of, or held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and

it either:

(i) permits or requires the construction, operation, use, maintenance or repair by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities (the action body), of any of the things listed in subsection (3); or

(ii) consists of the construction, operation, use, maintenance or repair by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities (the action body), of any of the things listed in subsection (3); and

it is done or commenced as follows:

(i) if the act is covered by subparagraph (c)(i)—it is done within the period of 20 years beginning on the day on which the Native Title Amendment Act (No. 1) 2010 commences;

(ii) if the act is covered by subparagraph (c)(ii)—it is commenced within the period of 20 years beginning on the day on which the Native Title Amendment Act (No. 1) 2010 commences; and

a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:

in the area in which the act is done; and

of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

Compulsory acquisitions not covered

public housing provided for Aboriginal people or Torres Strait Islanders living in, or in the vicinity of, the area;

any of the following that benefit those people:

public education facilities;

public health facilities;

police facilities;

emergency facilities;

staff housing provided in connection with housing or facilities covered by paragraph (a) or (b);

any of the following provided in connection with housing or facilities covered by paragraph (a), (b) or (c):

things listed in subsection 24KA(2);

sewerage treatment facilities;

things prescribed by the regulations.

Validation of act

if the act is covered by subparagraph (1)(c)(i)—before it is done; or

if the act is covered by subparagraph (1)(c)(ii)—before it is commenced;

the action body:

gives notice of, and an opportunity to comment on, the act in accordance with subsections (10) to (12); and

provides a report to the Commonwealth Minister in accordance with subsection (16).

if the act is covered by subparagraph (1)(c)(i)—it is done before; or

if the act is covered by subparagraph (1)(c)(ii)—it is commenced before;

the end of the consultation period.

Non-extinguishment principle

if the act is attributable to the Commonwealth:

if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or

if not—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory:

if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or

if not—the Crown in right of the State or Territory.

Notice

notify each of the following, in the way determined, by legislative instrument, by the Commonwealth Minister, that the act is to be done:

any registered native title claimant in relation to land or waters in the area;

any registered native title body corporate in relation to land or waters in the area;

any representative Aboriginal/Torres Strait Islander body in relation to land or waters in the area; and

give them an opportunity to comment on the act.

(a) specify a day as the notification day for the act; and

contain statements to the effect that:

comments on the act; and

requests under subsection (13) to be consulted about the act;

must be made within the period of 2 months that begins on the notification day.

must be provided:

in writing in accordance with any requirements determined, by legislative instrument, by the Commonwealth Minister; and

whether or not there were comments on, or requests to be consulted about, the act; and

may be published by the Commonwealth Minister.

Multiple action bodies

begins on the notification day; and

ends:

if no claimant or body corporate requests under subsection (13) to be consulted about the act—2 months later; or

if one or more claimants or bodies corporate request to be consulted about the act—4 months later, or at such earlier time after the time specified in paragraph (i) as each claimant and body corporate that requested to be consulted has notified, in writing, that they have been consulted.

registered native title rights and interests means native title rights and interests described in an entry on:

the Register of Native Title Claims; or

the National Native Title Register.

Subdivision J—Reservations, leases etc.

(a) an act (the earlier act) took place before the later act and on or before 23 December 1996; and

the earlier act was valid (including because of Division 2 or 2A); and

the earlier act:

was done by the Crown in right of the Commonwealth, a State or Territory; or

consisted of the making, amendment or repeal of legislation by the Commonwealth, a State or Territory: and

(d) the earlier act contained, made or conferred a reservation, proclamation, dedication, condition, permission or authority (the reservation) under which the whole or part of any land or waters was to be used for a particular purpose; and

the later act is done in good faith:

under or in accordance with the reservation; or

in the area covered by the reservation, so long as the act’s impact on native title is no greater than the impact that any act that could have been done under or in accordance with the reservation would have had.

Leases

(a) an act (the earlier act) took place before the later act and on or before 23 December 1996; and

the earlier act was valid (including because of Division 2 or 2A); and

the earlier act was done by the Crown in right of the Commonwealth, a State or a Territory; and

the earlier act consisted of the grant of a lease to a statutory authority of the Commonwealth, the State or the Territory, where:

under the lease, the whole or part of any land or waters covered by the lease was to be used for a particular purpose; or

there is written evidence, created at any time on or before 23 December 1996 by the Commonwealth, the State or the Territory, that the whole or part of any land or waters covered by the lease was to be used for a particular purpose; and

the later act is done in good faith and consists of the use, by the statutory authority or any person, of the land or waters for the particular purpose.

the act extinguishes any native title in relation to the land or waters on which the public work (on completion of its construction or establishment) is situated; and

the extinguishment is taken to have happened when the construction or establishment of the public work began.

Extinguishment consequences—not public works

if the act is attributable to the Commonwealth—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory—the Crown in right of the State or Territory.

Notification of public works

notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the reservation or lease that the act, or acts of that class, are to be done in relation to the land or waters; and

give them an opportunity to comment on the act or class of acts.

Notification of national, State and Territory park management plans

notify, in the way determined, by legislative instrument, by the Commonwealth Minister, any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters covered by the plan that the act is to be done in relation to the land or waters; and

give them an opportunity to comment on the act.

Subdivision K—Facilities for services to the public

it relates, to any extent, to an onshore place; and

it either:

permits or requires the construction, operation, use, maintenance or repair, by or on behalf of any person, of any of the things listed in subsection (2) that is to be operated, or is operated, for the general public; or

consists of the construction, operation, use, maintenance or repair, by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities, of any of the things listed in subsection (2) that is to be operated, or is operated, for the general public; and

it does not prevent native title holders in relation to land or waters on which the thing is located or to be located from having reasonable access to such land or waters in the vicinity of the thing, except:

while the thing is being constructed; or

for reasons of health and safety; and

a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:

in the area in which the act is done; and

of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

Compulsory acquisitions not covered

a road, railway, bridge or other transport facility (other than an airport or port);

a jetty or wharf;

a navigation marker or other navigational facility;

an electricity transmission or distribution facility;

lighting of streets or other public places;

a gas transmission or distribution facility;

a well, or a bore, for obtaining water;

a pipeline or other water supply or reticulation facility;

a drainage facility, or a levee or other device for management of water flows;

an irrigation channel or other irrigation facility;

a sewerage facility, other than a treatment facility;

a cable, antenna, tower or other communication facility;

an automatic weather station;

any other thing that is similar to any one or more of the things mentioned in the paragraphs above.

Validation of act

if the act is attributable to the Commonwealth:

if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or

if not—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory:

if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or

if not—the Crown in right of the State or Territory.

Procedural rights

to the extent (if any) that the land concerned is covered by a non-exclusive agricultural lease (see section 247B) or a non-exclusive pastoral lease (see section 248B)—a lease of that kind; or

to the extent (if any) that paragraph (a) does not apply—ordinary title;

covering any land concerned or covering the land adjoining, or surrounding, any waters concerned.

Native title rights and interests to be considered

because of subsection (7) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and

there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give the required notification is by notifying, in the way determined, by legislative instrument, by the Commonwealth Minister for the purposes of this subsection the following that the act is to take place:

any representative Aboriginal/Torres Islander bodies for that part of the area concerned for which there is no registered native title body corporate;

any registered native title claimants in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate.

Satisfying other procedural rights

because of subsection (7) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and

there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give effect to the requirement is:

by doing the thing in relation to any registered native title claimant in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate; or

if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate have an opportunity to comment on the doing of the act.

Subdivision L—Low impact future acts

the act takes place before, and does not continue after, an approved determination of native title is made in relation to the land or waters, if the determination is that native title exists; and

the act does not consist of, authorise or otherwise involve:

the grant of a freehold estate in any of the land or waters; or

the grant of a lease over any of the land or waters; or

the conferral of a right of exclusive possession over any of the land or waters; or

the excavation or clearing of any of the land or waters; or

mining (other than fossicking by using hand-held implements); or

the construction or placing on the land, or in the waters, of any building, structure, or other thing (other than fencing or a gate), that is a fixture; or

the disposal or storing, on the land or in the waters, of any garbage or any poisonous, toxic or hazardous substance.

Exclusion for public health or safety etc.

excavation or clearing that is reasonably necessary for the protection of public health or public safety; or

tree lopping, clearing of noxious or introduced animal or plant species, foreshore reclamation, regeneration or environmental assessment or protection activities.

Validation of act

it is an act other than the making, amendment or repeal of legislation; and

either:

the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it; or

the act could be done in relation to the waters concerned if the native title holders concerned held ordinary title to the land adjoining, or surrounding, the waters; and

a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:

in the area to which the act relates; and

of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

Opal or gem mining

it is an act other than the making, amendment or repeal of legislation; and

it is not covered by subsection (1); and

it consists of the creation or variation of a right to mine for opals or gems; and

a law of the Commonwealth, a State or a Territory makes provision in relation to the preservation or protection of areas, or sites, that may be:

in the area to which the act relates; and

of particular significance to Aboriginal peoples or Torres Strait Islanders in accordance with their traditions.

the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both:

the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and

the compulsory acquisition by the Commonwealth, the State or the Territory of non-native title rights and interests in relation to land or waters; and

the whole, or the equivalent part, of all non-native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired (whether compulsorily or by surrender, cancellation or resumption or otherwise) in connection with the compulsory acquisition of the native title rights and interests; and

the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests when their rights and interests are acquired;

then:

the compulsory acquisition extinguishes the whole or the part of the native title rights and interests; and

if compensation on just terms is provided under a law of the Commonwealth, a State or a Territory to the native title holders for the compulsory acquisition, and they request that the whole or part of any such compensation should be in a form other than money, the person providing the compensation must:

consider the request; and

negotiate in good faith in relation to the request; and

if compensation on just terms is not provided under a law of the Commonwealth, a State or Territory to the native title holders for the compulsory acquisition, they are entitled to compensation for the acquisition in accordance with Division 5.

Extinguishment of native title by surrender in course of right to negotiate process

notice of a proposed compulsory acquisition of native title rights and interests is given in accordance with section 29 or with an equivalent alternative provision applicable under section 43 or 43A; and

an agreement arose out of negotiations in relation to the proposed compulsory acquisition of the native title rights and interests; and

the agreement includes a statement to the effect that an act consisting of the surrender of the whole or part of the native title rights and interests is intended to extinguish the whole or the part of the native title rights and interests;

then:

the surrender extinguishes the whole or the part of the native title rights and interests; and

no native title holder who is entitled to any benefit provided under the agreement is entitled to any compensation for the act under this Act, other than compensation provided for in the agreement; and

any other native title holder is entitled to compensation for the act in accordance with Division 5.

Non-extinguishment and compensation

the non-extinguishment principle applies to the act; and

if the following conditions are satisfied:

the similar compensable interest test is satisfied in relation to the act; and

(ii) the law mentioned in similar compensable interest test) does not provide for compensation to the native title holders for the act;section 240 (which defines

the native title holders are entitled to compensation for the act in accordance with Division 5.

Who pays compensation

if the act is attributable to the Commonwealth:

if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or

if not—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory:

if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or

if not—the Crown in right of the State or Territory.

Exception for certain lessees

the act is the compulsory acquisition of the whole or part of any native title rights and interests; and

the land or waters concerned are to any extent the subject of a non-exclusive agricultural lease or a non-exclusive pastoral lease;

then, despite subsection (4):

the native title holders are not entitled to recover the compensation from the lessee; and

if the act is attributable to the Commonwealth—the native title holders may recover the compensation from the Crown in right of the Commonwealth; and

if the act is attributable to a State or Territory—the native title holders may recover the compensation from the Crown in right of the State or Territory.

Consequences of certain acts

an act to which Subdivision P (which deals with the right to negotiate) applies; or

an act determined under section 26A to be an approved exploration etc. act; or

an act determined under section 26B to be an approved gold or tin mining act; or

an act covered by section 26C (which deals with opal or gem mining);

the consequences in subsections (6A) and (6B) apply.

Procedural rights

the compulsory acquisition of native title rights and interests for the purpose of conferring rights or interests in relation to the land or waters concerned on persons other than the Commonwealth, the State or the Territory to which the act is attributable; or

the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility (see section 253) associated with mining;

the following consequences also apply:

the Commonwealth, the State or the Territory to which the act is attributable must notify each of the following:

(i) any registered native title claimant (a claimant) in relation to the land or waters; and

(ii) any registered native title body corporate (a body corporate), in relation to the land or waters; and

any representative Aboriginal/Torres Strait Islander body in relation to the land or waters; and

the Registrar;

that the act is to be done; and

any claimant or body corporate may object, within 2 months after the notification, to the doing of the act so far as it affects their registered native title rights and interests; and

either:

in a paragraph (a) case—the Commonwealth, the State or the Territory; or

in a paragraph (b) case—the person who requested or applied for the doing of the act;

must consult any claimants, and bodies corporate, who object, about ways of minimising the act’s impact on registered native title rights and interests in relation to the land or waters, and, if relevant, any access to the land or waters or the way in which any thing authorised by the act might be done; and

if:

a claimant or body corporate objects, as mentioned in paragraph (d), to the doing of the act; and

8 months after the notification mentioned in paragraph (c), the objection has not been withdrawn;

the Commonwealth, the State or the Territory must ensure that the objection is heard by an independent person or body; and

if the independent person or body hearing any objection as mentioned in paragraph (f) makes a determination upholding the objection, or that contains conditions about the doing of the act that relate to registered native title rights and interests, the determination must be complied with unless:

the Minister of the Commonwealth, the State or the Territory responsible for indigenous affairs is consulted; and

the consultation is taken into account; and

it is in the interests of the Commonwealth, the State or the Territory not to comply with the determination.

Meaning of determination

for the social or economic benefit of the Commonwealth, the State or the Territory (including of Aboriginal peoples and Torres Strait Islanders); and

in the interests of the relevant region or locality in the Commonwealth, the State or the Territory.

Satisfying the right to be notified

because of subsection (6A) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and

there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give the required notification is by notifying, in the way determined, by legislative instrument, by the Commonwealth Minister for the purposes of this subsection, the following that the act is to take place:

any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate;

any registered native title claimants in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate.

Satisfying other procedural rights

because of subsection (6A) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and

there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give effect to the requirement is:

by doing the thing in relation to any registered native title claimant in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate; or

if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate have an opportunity to comment on the doing of the act.

Subdivision N—Acts affecting offshore places

the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both:

the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and

the compulsory acquisition by the Commonwealth, the State or the Territory of non-native title rights and interests in relation to land or waters; and

the whole, or the equivalent part, of all non-native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired (whether compulsorily or by surrender, cancellation or resumption or otherwise) in connection with the compulsory acquisition of the native title rights and interests; and

the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests when their rights and interests are acquired;

then the compulsory acquisition extinguishes the whole or the part of the native title rights and interests.

Non-extinguishment principle

if compensation on just terms is provided under a law of the Commonwealth, a State or a Territory to the native title holders for the acquisition, and they request that the whole or part of any such compensation should be in a form other than money, the person providing the compensation must:

consider the request; and

negotiate in good faith in relation to the request; and

if compensation on just terms is not provided under a law of the Commonwealth, a State or Territory to the native title holders for the acquisition, they are entitled to compensation for the acquisition in accordance with Division 5.

Compensation for other acts

if the act is attributable to the Commonwealth:

if a law of the Commonwealth provides that a person other than the Crown in right of the Commonwealth is liable to pay the compensation—that person; or

if not—the Crown in right of the Commonwealth; or

if the act is attributable to a State or Territory:

if a law of the State or Territory provides that a person other than the Crown in any capacity is liable to pay the compensation—that person; or

if not—the Crown in right of the State or Territory.

Procedural rights

because of subsection (8) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act; and

there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give the required notification is by notifying, in the way determined, by legislative instrument, by the Commonwealth Minister for the purposes of this subsection, the following that the act is to take place:

any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate;

any registered native title claimants in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate.

Satisfying other procedural rights

because of subsection (8) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to do any thing in relation to the native title holders; and

there is no registered native title body corporate, or there are no registered native title bodies corporate, in relation to the whole of the land or waters in the area concerned;

then one way in which the person may give effect to the requirement is:

by doing the thing in relation to any registered native title claimant in relation to land or waters in that part of the area concerned for which there is no registered native title body corporate; or

if there are no such registered native title claimants—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for that part of the area concerned for which there is no registered native title body corporate have an opportunity to comment on the doing of the act.

Subdivision O—Future acts invalid unless otherwise provided

certain acts covered by section 24IC (which deals with permissible lease etc. renewals);

certain conferrals of mining rights;

certain compulsory acquisitions of native title rights and interests;

other acts approved by the Commonwealth Minister.

section 24IC (which deals with permissible lease etc. renewals) applies to the act; and

(b) the act is done by the Commonwealth, a State or a Territory (the Government party); and

the renewal, re-grant, re-making or extension of the term of the lease, licence, permit or authority concerned creates a right to mine.

Subdivision also applies to certain future acts

Subdivision M (which deals with acts that pass the freehold test) applies to the act; and

(b) the act is done by the Commonwealth, a State or a Territory (the Government party); and

subject to this section, the act is:

the creation of a right to mine, whether by the grant of a mining lease or otherwise, except one created for the sole purpose of the construction of an infrastructure facility (see section 253) associated with mining; or

the variation of such a right, to extend the area to which it relates; or

the compulsory acquisition of native title rights and interests, unless:

(A) the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on the Government party and the Government party makes a statement in writing to that effect before the acquisition takes place; or

(B) the purpose of the acquisition is to provide an infrastructure facility; or

any other act approved by the Commonwealth Minister, by legislative instrument, for the purposes of this paragraph, where, if the act is attributable to a State or Territory, the Commonwealth Minister consulted the State Minister or the Territory Minister about the approval before giving it.

Exclusions

an act covered by section 24EB (which deals with the effects of indigenous land use agreements) or by any of the sections listed in paragraphs 24AA(4)(a) to (i); or

an act determined, by legislative instrument, by the Commonwealth Minister to be an approved exploration etc. act (see section 26A); or

an act determined, by legislative instrument, by the Commonwealth Minister to be an approved gold or tin mining act (see section 26B); or

an act excluded by section 26C (which deals with opal or gem mining) from the coverage of this Subdivision; or

an act excluded by section 26D (which deals with renewals of valid mining leases etc.) from the coverage of this Subdivision; or

an act that is the compulsory acquisition of native title rights and interests and that relates solely to land or waters wholly within a town or city (see section 251C).

Sea and intertidal zone excluded

notified any relevant representative Aboriginal/Torres Strait Islander bodies, and notified the public in the determined way, of the proposed determination; and

invited submissions from them about the proposed determination; and

considered any submissions made in response to the invitation.

Fourth condition

all:

registered native title bodies corporate; and

registered native title claimants; and

representative Aboriginal/Torres Strait Islander bodies;

in relation to any of the land or waters that will be affected by the act or acts will have a right to be notified that the act or each act included in the class is to be done; and

any such persons or bodies will have a right to be heard by an independent person or body about:

whether the act is to be done; and

any matter relating to the doing of the act;

unless no other person would have such a right, assuming the person had an interest of any kind in relation to the land or waters; and

either:

the person, or one of the persons, who will do any thing authorised by the act will have a legal obligation to consult appropriately any person or body covered by subparagraph (a)(i) or (ii), unless the person or body indicates that the person or body does not wish to be so consulted; or

procedures will be in place under which such consultation will be required;

for the purpose of minimising the impact of the act on the exercise of native title rights and interests in relation to land or waters that will be affected by the act, and in particular about the matters set out in subsection (7).

Matters relevant to fourth condition

the protection and avoidance of any area or site, on the land or waters to which the native title rights and interests relate, of particular significance to the persons holding the native title in accordance with their traditional laws and customs; and

any access to the land or waters to which the native title rights and interests relate by:

those persons; or

any person who will do any thing that is authorised because of, results from, or otherwise relates to, the doing of the act; and

the way in which any other thing that:

is authorised because of, results from, or otherwise relates to, the doing of the act; and

affects the native title rights and interests;

is to be done.

Revocation of determination

if the act or acts are done by a State or Territory:

advise the State Minister or the Territory Minister concerned in writing of the fact; and

if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the conditions in this section would still not be satisfied—by legislative instrument, revoke the determination; or

if the act or acts are done by the Commonwealth—by legislative instrument, revoke the determination.

notified any relevant representative Aboriginal/Torres Strait Islander bodies, and notified the public in the determined way, of the proposed determination; and

invited submissions from them about the proposed determination; and

considered any submissions made in response to the invitation.

Sixth condition

all:

registered native title bodies corporate; and

registered native title claimants; and

representative Aboriginal/Torres Strait Islander bodies;

in relation to any land or waters that will be affected by the acts will have a right to be notified that each act included in the class is to be done; and

any such persons or bodies will have a right to be heard by an independent person or body about:

whether the act is to be done; and

any matter relating to the doing of the act;

unless no other person would have such a right, assuming the person had an interest of any kind in relation to the land or waters; and

either:

the person, or one of the persons, who will do any thing authorised by the act will have a legal obligation to consult appropriately any person or body covered by subparagraph (a)(i) or (ii), unless the person or body indicates that the person or body does not wish to be so consulted; or

procedures will be in place under which such consultation will be required;

for the purpose of minimising the impact of the act on land or waters, in relation to which native title rights and interests may exist, that will be affected by the act, and in particular about the matters set out in subsection (8).

Matters relevant to sixth condition

the protection and avoidance of any area or site, on the land or waters to which the native title rights and interests relate, of particular significance to the persons holding the native title in accordance with their traditional laws and customs; and

any access to the land or waters to which the native title rights and interests relate by:

those persons; or

any person who will do any thing that is authorised because of, results from, or otherwise relates to, the doing of the act; and

the way in which any rehabilitation or other thing that is authorised because of, results from, or otherwise relates to, the doing of the act is to be done.

Revocation of determination

advise the State Minister or the Territory Minister concerned in writing of the fact; and

if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the conditions in this section would still not be satisfied—by legislative instrument, revoke the determination.

is not a right to explore or prospect; and

relates solely to land or waters wholly within an approved opal or gem mining area (see subsection (2)); and

allows:

mining (other than puddling) only for opals or gems; or

mining consisting of puddling in respect of opals or gems; and

allows that mining only in an area no larger than 5 hectares; and

is conferred for a period of no more than 5 years; and

if the right is able to be renewed one or more times—is able to be renewed for no more than 5 years each time.

Exploring or prospecting

relates solely to land or waters wholly within an approved opal or gem mining area (see subsection (2)); and

allows exploration or prospecting only for opals or gems; and

allows that exploration or prospecting in an area no larger than 500 hectares; and

is conferred for a period of no more than 5 years; and

if the right is able to be renewed one or more times—is able to be renewed for no more than 5 years each time.

Approved opal or gem mining area

any mining rights conferred in the past in the area; and

any other relevant matter;

that in the future at least some rights will be conferred to mine in the area that will:

allow:

mining for opals or gems (other than mining consisting of exploring, prospecting or puddling) only in an area no larger than 5 hectares; or

mining consisting of puddling in respect of opals or gems only in an area no larger than 5 hectares; or

mining consisting of exploration or prospecting for opals or gems in an area no larger than 500 hectares; and

be conferred for a period of no more than 5 years; and

if the rights are renewed one or more times—be renewed for a period of no more than 5 years each time.

Third condition

notified the public, and notified any registered native title bodies corporate, registered native title claimants and representative Aboriginal/Torres Strait Islander bodies in relation to any of the area, that he or she was intending to make the request in relation to the area; and

invited submissions about the request, and in particular about the area covered by the request and about processes for the identification and protection of any area or site within that area of particular significance to native title holders in accordance with their traditional laws and customs; and

considered any such submissions that were made.

Fourth condition

if paragraph (b) does not apply—the area; or

if, immediately before the determination is made, any part of the area is an approved opal or gem mining area—so much of the area as is not already an approved opal or gem mining area.

Revocation of determination

advise the State Minister or the Territory Minister concerned in writing of the fact; and

if at the end of 90 days, or such longer period as the Commonwealth Minister allows, after doing so, the conditions in this section would still not be satisfied—by legislative instrument, revoke the determination.

the creation of the right is done by:

the renewal; or

the re-grant or re-making; or

the extension of the term;

of an earlier right to mine; and

the earlier right:

was created on or before 23 December 1996 by an act that is valid (including because of Division 2 or 2A); or

was created by an act to which this Subdivision applied that was not invalid to any extent under section 28; and

the area to which the earlier right relates is not extended; and

the term of the right is not longer than the term of the earlier right; and

no rights are created in connection with the right that were not created in connection with the earlier right.

Act contemplated by exploration or prospecting agreement etc.

(a) before the later act takes place, an act (the earlier act) consisting of the creation of a right to explore or prospect took place; and

the earlier act took place after the commencement of this section; and

this Subdivision applied to the earlier act and, because:

an agreement of the kind mentioned in paragraph 31(1)(b) was made in relation to the earlier act; or

a determination was made under section 38 that the earlier act might be done, or might be done subject to conditions being complied with;

the earlier act was not invalid to any extent under section 28; and

the agreement or determination:

included a statement to the effect that, if the later act were done, this Subdivision would not apply to the later act; and

provided that, if the later act were done, certain conditions would be complied with by parties other than native title parties (whether before or after the act was done); and

any such conditions that were required to be complied with before the later act is done are complied with before the later act is done.

(a) a Commonwealth place (within the meaning of the Commonwealth Places (Application of Laws) Act 1970); or

any place outside the jurisdictional limits of the State or Territory.

Arbitral bodies: NNTT

a future act is done by the Commonwealth; or

a future act is done by a State or Territory and there is no arbitral body under subsection (1) in respect of the act;

the National Native Title Tribunal is the arbitral body in respect of the act.

Arbitral body not to include holders of judicial offices

a member who is the holder of a judicial office; or

members one or more of whom are the holders of judicial offices.

by the end of the period of 4 months after the notification day for the act (see subsection 29(4)), there is no native title party in relation to any of the land or waters that will be affected by the act;

after the end of that period, but immediately before the act is done, there is no native title party in relation to any of the land or waters that will be affected by the act;

subsection 32(2) (which applies if no objection is made after the giving of a notice that the act attracts the expedited procedure) allows the act to be done;

a determination is made under subsection 32(4) that the act is an act attracting the expedited procedure;

native title parties have lodged one or more objections in relation to the act under subsection 32(3), but all such objections are withdrawn under subsection 32(6);

an agreement of the kind mentioned in paragraph 31(1)(b) is made;

a determination is made under section 36A or 38 that the act may be done, or may be done subject to conditions being complied with;

a determination that the act must not be done is declared to be overruled in accordance with section 42.

Breach of undertaking to trustee

in a case where an amount is to be secured by bank guarantee in favour of the Registrar in compliance with a condition of a determination made under section 36A or 38 or a declaration made under section 42:

the Registrar is informed by the Government party as mentioned in item 2 of the table in subsection 52(2) that it no longer proposes to do the act; and

the Government party does the act without again complying with the requirements of this Subdivision; or

in a case where a trustee is holding an amount in trust under this Subdivision in respect of the act until it is dealt with in accordance with section 52A:

the trustee is informed by the Government party as mentioned in paragraph 52A(1)(b) that it no longer proposes to do the act; and

the Government party does the act without again complying with the requirements of this Subdivision.

(a) any registered native title body corporate (a native title party) in relation to any of the land or waters that will be affected by the act; and

unless there are one or more registered native title bodies corporate in relation to all of the land or waters that will be affected by the act:

(i) any registered native title claimant (also a native title party); and

any representative Aboriginal/Torres Strait Islander body;

in relation to any land or waters that will be affected by the act; and

(c) if the doing of the act has been requested or applied for by a person (for example, where it is the issue of a licence or the grant of a lease for which the person has applied)—that person (a grantee party); and

the registrar or other proper officer of the arbitral body in relation to the act.

Public notification

(a) specify a day as the notification day for the act; and

contain a statement to the effect that, under section 30, persons have until 3 months after the notification day to take certain steps to become native title parties in relation to the notice; and

be accompanied by any prescribed documents and include any prescribed information.

Each notice to specify the same day

the notice identifies a project to be carried on in a specified area; and

the 2 or more acts constitute or form part of the project (whether or not the notice separately specifies the area that each act will affect); and

the arbitral body is the same for each of the acts; and

the notice states that the acts are project acts for the purposes of this Subdivision;

the acts are project acts for the purposes of this Subdivision.

Project acts not to include statement about expedited procedure

any applicant who, 4 months after the notification day (see subsection 29(4)), is a registered native title claimant in relation to any of the land or waters that will be affected by the act, so long as:

the application containing the claim was filed in the Federal Court, or given to the recognised State/Territory body, before the end of 3 months after the notification day; and

the claim related to any of the land or waters that will be affected by the act;

any body corporate that, 3 months after the notification day, is a registered native title body corporate in relation to any of the land or waters that will be affected by the act;

any body corporate that becomes a registered native title body corporate in relation to any of the land or waters that will be affected by the act:

after the end of that period of 3 months; and

as a result of a claim whose details were entered on the Register of Native Title Claims before the end of that period of 3 months.

Ceasing to be a native title party

if the native title party is such because an entry has been made on the National Native Title Register—the native title rights and interests described in that entry; or

if the native title party is such because an entry has been made on the Register of Native Title Claims—the native title rights and interests described in that entry.

Replacing a native title party

(a) an applicant (the old applicant) in relation to a claimant application is a native title party; and

(b) the old applicant is replaced as the applicant in relation to the claimant application by another applicant (the new applicant); and

the new applicant becomes a registered native title claimant;

the new applicant also replaces the old applicant as the native title party.

the Government party must give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act; and

the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:

the doing of the act; or

the doing of the act subject to conditions to be complied with by any of the parties.

Government party does not need to participate in negotiations

a majority of the persons who comprise the registered native title claimant are parties to the agreement, unless paragraph (b) applies; or

if conditions under the authority of the registered native title claimant provide for the persons who must become a party to the agreement—those persons are parties to the agreement.section 251BA on