NATIVE TITLE ACT 1993 PART 15 DEFINITIONS ~ unitedstatessecurities

The following table lists the definitions in this Part and shows their location:

List of Definitions
Expression	Section
Aboriginal peoples	253
Aboriginal/Torres Strait Islander land or waters	253
act	226
act attracting the expedited procedure	237
affect	227
agent prescribed body corporate	253
agricultural lease	247
applicant	253
approved determination of native title	253
arbitral body	253
assessor	253
attributable	239
authorise	253
category A intermediate period act	232B
category A past act	229
category B intermediate period act	232C
category B past act	230
category C intermediate period act	232D
category C past act	231
category D intermediate period act	232E
category D past act	232
Chief Justice	253
claimant application	253
coastal sea	253
commercial lease	246
common law holders	253
Commonwealth Minister	253
community purposes lease	249A
CSC	253
determination of native title	225
exclusive agricultural lease	247A
exclusive pastoral lease	248A
explore	253
extinguish	237A
Federal Court	253
forest operations	253
former judge	253
future act	233
Government party	253
grantee party	253
horticulture	253
indigenous land use agreement	253
infrastructure facility	253
interest	253
intermediate period act	232A
Judge	253
jurisdictional limits	253
land	253
land or waters on which a public work is constructed, established or situated	251D
lease	242
lessee	243
major earthworks	253
member	253
mine	253
mining lease	245
National Native Title Register	253
National Native Title Tribunal	253
native title	223
native title application inquiry	253
native title claim group	253
native title group	24CD, 24DE
native title holder	224
native title party	253
Native Title Registrar	253
native title rights and interests	223
negotiation party	253
NNTT	253
non‑claimant application	253
non‑exclusive agricultural lease	247B
non‑exclusive pastoral lease	248B
non‑extinguishment principle	238
non‑presidential member	253
notify the public in the determined way	252
offshore place	253
onshore place	253
ordinary title	253
paragraph 51(xxxi) acquisition of property	253
paragraph 51(xxxi) just terms	253
past act	228
pastoral lease	248
permit	244
perpetual lease	249B
prescribed	253
President	253
presidential member	253
previous exclusive possession act	23B
previous non‑exclusive possession act	23F
primary production activity	24GA
procedural right	253
public education facilities	253
public health facilities	253
public housing	253
public work	253
recognised State/Territory body	253
Register of Indigenous Land Use Agreements	253
Register of Native Title Claims	253
registered native title body corporate	253
registered native title claimant	253
Registrar	253
representative Aboriginal/Torres Strait Islander body	253
representative body	253
residential lease	249
right to negotiate application	253
Scheduled interest	249C
similar compensable interest test	240
special matter	253
State Minister	253
statutory authority	253
subject to section 24FA protection	253
subsection 24DJ(1) objection application	253
Territory Minister	253
Torres Strait Islander	253
town or city	251C
traditional activity	44A
Tribunal	253
valid	253
waters	253

Division 2—Key concepts: Native title and acts of various kinds etc.

223 Native title

Common law rights and interests

(1) The expression native titleor native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

Hunting, gathering and fishing covered

(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

Statutory rights and interests

(3) Subject to subsections (3A) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression native title or native title rights and interests.

Note: Subsection (3) cannot have any operation resulting from a future act that purports to convert or replace native title rights and interests unless the act is a valid future act.

Subsection (3) does not apply to statutory access rights

(3A) Subsection (3) does not apply to rights and interests conferred by Subdivision Q of Division 3 of Part 2 of this Act (which deals with statutory access rights for native title claimants).

Case not covered by subsection (3)

(4) To avoid any doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title rights and interests):

(a) in a pastoral lease granted before 1 January 1994; or

(b) in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1 January 1994.

224 Native title holder

The expression native title holder, in relation to native title, means:

(a) if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust—the prescribed body corporate; or

(b) in any other case—the person or persons who hold the native title.

225 Determination of native title

A determination of native titleis a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b) the nature and extent of the native title rights and interests in relation to the determination area; and

(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e) to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests.

226 Act

Section affects meaning of act in references relating to native title

(1) This section affects the meaning of actin references to an act affecting native title and in other references in relation to native title.

Certain acts included

(2) An act includes any of the following acts:

(a) the making, amendment or repeal of any legislation;

(b) the grant, issue, variation, extension, renewal, revocation or suspension of a licence, permit, authority or instrument;

(d) the creation, variation, extension, renewal or extinguishment of any legal or equitable right, whether under legislation, a contract, a trust or otherwise;

(e) the exercise of any executive power of the Crown in any of its capacities, whether or not under legislation;

(f) an act having any effect at common law or in equity.

Acts by any person

(3) An act may be done by the Crown in any of its capacities or by any other person.

227 Act affecting native title

An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise.

228 Past act

Definition

(1) This section defines past act.

Acts before 1 July 1993 or 1 January 1994

(2) Subject to subsection (10), if:

(a) either:

(i) at any time before 1 July 1993 when native title existed in relation to particular land or waters, an act consisting of the making, amendment or repeal of legislation took place; or

(ii) at any time before 1 January 1994 when native title existed in relation to particular land or waters, any other act took place; and

(b) apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist;

the act is a past act in relation to the land or waters.

Options exercised on or after 1 January 1994 etc.

(3) Subject to subsection (10), an act that takes place on or after 1 January 1994 is a past actif:

(a) it would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

(b) it takes place:

(i) in exercise of a legally enforceable right created by the making, amendment or repeal of legislation before 1 July 1993 or by any other act done before 1 January 1994; or

(ii) in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith before 1 July 1993, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made; and

Extensions, renewals etc.

(4) Subject to subsections (6) and (10), an act (the later act) that takes place on or after 1 January 1994 is a past act if:

(a) the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

(b) an act (the earlier act) that is a past act because of any subsection of this section (including because of another application of this subsection) took place before the later act; and

(i) the same person; or

(ii) another person who has acquired the interests of the first person (by assignment, succession or otherwise);

in relation to the whole or part of the land or waters to which the earlier act relates; and

(d) the interests created by the later act take effect before or immediately after the interests created by the earlier act cease to have effect; and

(e) the interests created by the later act permit activities of a similar kind to those permitted by the earlier act.

Examples of similar and dissimilar acts for the purposes of paragraph (4)(e)

(5) The following are examples for the purposes of paragraph (4)(e):

(a) the grant of a lease that permits mining only for a particular mineral followed by the grant of a lease that permits similar mining for another mineral is an example of a case where interests created by an earlier act permit activities that are of a similar kind to those permitted by a later act;

(b) the grant of a lease that permits only grazing followed by the grant of a lease that permits mining is an example of a case where interests created by an earlier act permit activities that are not of a similar kind to those permitted by a later act.

Cases excluded from subsection (4)

(6) Subsection (4) does not apply if:

(a) the earlier act was the creation of a non‑proprietary interest in relation to land or waters and the later act is the creation of a proprietary interest in land or waters; or

(b) the earlier act was the creation of a proprietary interest in land or waters and the later act is the creation of a larger proprietary interest in land or waters; or

(c) if the earlier act contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders—the later act does not contain the same reservation or condition; or

(d) the earlier act or the later act is the making, amendment or repeal of legislation.

Example of earlier and later acts for the purposes of paragraph (6)(a)

(7) For the purposes of paragraph (6)(a), the issue of a licence followed by the grant of a lease is an example of an earlier act that is the creation of a non‑proprietary interest in relation to land and a later act that is the creation of a proprietary interest in land.

Example of earlier and later acts for the purposes of paragraph (6)(b)

(8) For the purposes of paragraph (6)(b), the grant of a lease followed by the grant of a freehold estate is an example of an earlier act that is the creation of a proprietary interest in land and a later act that is the creation of a larger proprietary interest in land.

Other extensions, and developments, of earlier acts

(9) Subject to subsection (10), an act (the later act) that takes place on or after 1 January 1994 is a past act if:

(a) the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

(b) an act (the earlier act) that is a past act because of any subsection of this section took place before the later act; and

(c) the earlier act contained or conferred a reservation, condition, permission or authority under which the whole or part of the land or waters to which the earlier act related was to be used at a later time for a particular purpose (for example, a reservation for forestry purposes); and

(d) the later act is done in good faith under or in accordance with the reservation, condition, permission or authority (for example, the issue in good faith of a licence to take timber under a reservation for forestry purposes); and

(e) the later act is not the making, amendment or repeal of legislation.

Excluded acts

(10) An act is not a past act if it is:

(a) the Queensland Coast Islands Declaratory Act 1985 of Queensland; or

(b) any other act declared by the regulations to be an excluded act for the purposes of this paragraph.

229 Category A past act

Section defines expression

(1) This section defines the expression category A past act.

Grant of certain freehold estates

(2) A past act consisting of the grant of a freehold estate is a category A past act if:

(a) either:

(i) the grant was made before 1 January 1994 and the estate existed on 1 January 1994; or

(ii) the grant was made on or after 1 January 1994 and it is a past act because subsection 228(3) (which deals with such things as the exercise of options) or 228(9) (which deals with other extensions etc. of earlier acts) applies; and

(b) the grant is not:

(i) a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity; or

(ii) a grant made by or under legislation that grants freehold estates only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(iii) a grant of a prescribed kind to or for the benefit of Aboriginal peoples or Torres Strait Islanders.

Grant of certain leases

(3) A past act consisting of the grant of:

(a) a commercial lease, an agricultural lease, a pastoral lease or a residential lease; or

(b) 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;

is a category A past act if:

(i) the grant was made before 1 January 1994 and the lease was in force on 1 January 1994; or

(ii) the grant was made on or after 1 January 1994 and it is a past act because subsection 228(3) or (9) applies; and

(d) the grant is not:

(i) a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity; or

(ii) a grant made by or under legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(iii) a grant of a prescribed kind to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(iv) a grant over land or waters that, on 1 January 1994, are Aboriginal/Torres Strait Islander land or waters.

Construction of public works

(4) A past act consisting of the construction or establishment of any public work is a category A past act if:

(a) the work commenced to be constructed or established before 1 January 1994 and the construction or establishment had not been completed by that day; or

(b) the work was constructed or established before 1 January 1994 and still existed on that day; or

(c) the work was constructed or established on or after 1 January 1994 and the construction or establishment is a past act because subsection 228(9) applies.

230 Category B past act

A category B past act is a past act consisting of the grant of a lease where:

(a) the grant is not a category A past act; and

(b) the lease is not a mining lease; and

(i) the grant was made before 1 January 1994 and the lease was in force on 1 January 1994; or

(ii) the grant was made on or after 1 January 1994 and it is a past act because subsection 228(3) (which deals with such things as the exercise of options) or (9) (which deals with other extensions etc. of earlier acts) applies; and

(d) the grant is not:

(i) a grant by the Crown in any capacity to the Crown, or to a statutory authority of the Crown, in any capacity; or

(ii) a grant made by or under legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(iii) a grant of a prescribed kind to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(iv) a grant over land or waters that, on 1 January 1994, are Aboriginal/Torres Strait Islander land or waters.

231 Category C past act

A category C past act is a past act consisting of the grant of a mining lease.

232 Category D past act

A category D past act is any past act that is not a category A past act, a category B past act or a category C past act.

232A Intermediate period act

(1) This section defines intermediate period act.

Note: Intermediate period acts may be validated under Division 2A of Part 2.

Acts between 1.1.94 and 23.12.96

(2) Subject to subsection (3), an act is an intermediate period act if:

(a) the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996 when native title existed in relation to particular land or waters; and

(b) the act did not consist of the making, amendment or repeal of legislation, other than legislation that affects the native title by:

(i) creating a freehold estate, lease or licence over the land or waters; or

(ii) containing, making or conferring a reservation, proclamation or dedication under which the whole or part of the land or waters is to be used for a particular purpose; and

Note: An intermediate period act, such as the grant of a lease, may be validated under Division 2A of Part 2 even if the legislation under which the act was done is not so validated.

(c) the act was invalid to any extent because of Division 3 of Part 2 (disregarding section 24EBA) or for any other reason, but it would have been valid to that extent if the native title did not exist; and

(d) the act was not a past act (see section 228); and

(e) at any time before the act was done, either:

(i) a grant of a freehold estate or a lease (other than a mining lease) was made covering any of the land or waters affected by the act; or

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

(f) the grant, or the construction or establishment, mentioned in paragraph (e) was valid (including because of any provision of this Act).

Exclusion by regulation

(3) The regulations may provide that an act is not an intermediate period act.

232B Category A intermediate period act

(1) This section defines the expression category A intermediate period act.

Grant of freehold estates

(2) An intermediate period act consisting of the grant or vesting of a freehold estate is a category A intermediate period act.

Grant of certain leases etc.

(3) An intermediate period act consisting of the grant or vesting of:

(a) a Scheduled interest (see section 249C); or

(b) a commercial lease that is neither an agricultural lease nor a pastoral lease; or

(d) a residential lease; or

(e) a community purposes lease (see section 249A); or

(f) 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”; or

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

is a category A intermediate period act.

Vesting of certain land or waters

(4) If:

(a) an intermediate period act is done by or under legislation of a State or a Territory; and

(b) the intermediate period act consists of the vesting of particular land or waters in any person; and

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

the intermediate period act is a category A intermediate period act.

Construction of public works

(7) An intermediate period act consisting of the construction or establishment of any public work is a category A intermediate period act.

(8) An intermediate period act is not a category A intermediate period act if it is:

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

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

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

Exclusion by regulation

(9) The regulations may provide that an act is not a category A intermediate period act.

232C Category B intermediate period act

A category B intermediate period act is an intermediate period act consisting of the grant of a lease if:

(a) the grant is not a category A intermediate period act; and

(b) the lease is not:

(i) a mining lease; or

(ii) a lease granted by or under legislation that grants leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(iii) a lease granted expressly for the benefit of, or to a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

(iv) any other lease granted over particular land or waters, if at the time a lease covered by subparagraph (ii) or (iii) is in force over the land or waters.

232D Category C intermediate period act

A category C intermediate period act is an intermediate period act consisting of the grant of a mining lease.

232E Category D intermediate period act

A category D intermediate period act is any intermediate period act that is not a category A intermediate period act, a category B intermediate period act or a category C intermediate period act.

233 Future act

Definition

(1) Subject to this section, an act is a future act in relation to land or waters if:

(a) either:

(i) it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or

(ii) it is any other act that takes place on or after 1 January 1994; and

(b) it is not a past act; and

(i) it validly affects native title in relation to the land or waters to any extent; or

(ii) the following apply:

(A) it is to any extent invalid; and

(B) it would be valid to that extent if any native title in relation to the land or waters did not exist; and

Validation and extinguishment legislation excluded

(2) If:

(a) the act consists of the making, amendment or repeal of legislation; and

(b) the act purports to:

(i) validate any past act or intermediate period act; or

(ii) extinguish native title, or extinguish native title rights and interests to an extent; and

subsection (1) does not apply to the extent that the act purports to validate the act, or to extinguish the native title or the native title rights and interests.

Acts creating or affecting Aboriginal/Torres Strait Islander land or waters excluded

(3) Subsection (1) does not apply to any of the following acts:

(a) an act that causes land or waters to be held by or for the benefit of Aboriginal peoples or Torres Strait Islanders under a law mentioned in the definition of Aboriginal/Torres Strait Islander land or waters in section 253;

(b) any act affecting Aboriginal/Torres Strait Islander land or waters.

237 Act attracting the expedited procedure

A future act is an act attracting the expedited procedure if:

(a) the act is not likely to interfere directly with the carrying on of the community or social activities of the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of native title in relation to the land or waters concerned; and

(b) the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders (disregarding any trust created under Division 6 of Part 2) of the native title in relation to the land or waters concerned; and

(c) the act is not likely to involve major disturbance to any land or waters concerned or create rights whose exercise is likely to involve major disturbance to any land or waters concerned.

237A Extinguish

The word extinguish, in relation to native title, means permanently extinguish the native title. To avoid any doubt, this means that after the extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect.

238 Non‑extinguishment principle

Effect of references

(1) This section sets out the effect of a reference to the non‑extinguishment principle applying to an act.

Native title not extinguished

(2) If the act affects any native title in relation to the land or waters concerned, the native title is nevertheless not extinguished, either wholly or partly.

Rights and interests wholly ineffective

(3) In such a case, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety but the rights and interests have no effect in relation to the act.

Rights and interests partly ineffective

(4) If the act is partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests, the native title continues to exist in its entirety, but the rights and interests have no effect in relation to the act to the extent of the inconsistency.

Who the native title holders are

(5) Despite the fact that the native title rights and interests have no effect (as mentioned in subsection (3)) or have only limited effect (as mentioned in subsection (4)) in relation to the act, the persons who are entitled in accordance with the traditional laws and customs, as applying from time to time, to possess those rights and interests continue to be the native title holders, subject to Division 6 of Part 2 (which deals with the holding of native title on trust).

Complete removal of act or its effects

(6) If the act or its effects are later wholly removed or otherwise wholly cease to operate, the native title rights and interests again have full effect.

Partial removal of act or its effects

(7) If the act or its effects are later removed only to an extent, or otherwise cease to operate only to an extent, the native title rights and interests again have effect to that extent.

Example of operation of section

(8) An example of the operation of this section is its application to a category C past act consisting of the grant of a mining lease that confers exclusive possession over an area of land or waters in relation to which native title exists. In such a case the native title rights and interests will continue to exist but will have no effect in relation to the lease while it is in force. However, after the lease concerned expires (or after any extension, renewal or re‑grant of it to which subsection 228(3), (4) or (9) applies expires), the rights and interests again have full effect.

239 Act attributable to the Commonwealth, a State or a Territory

An act is attributable to the Commonwealth, a State or a Territory if the act is done by:

(a) the Crown in right of the Commonwealth, the State or the Territory; or

(b) the Parliament or Legislative Assembly of the Commonwealth, the State or the Territory; or

240 Similar compensable interest test

The similar compensable interest test is satisfied in relation to a past act, an intermediate period act or a future act if:

(a) the native title concerned relates to an onshore place; and

(b) the compensation would, apart from this Act, be payable under any law for the act on the assumption that the native title holders instead held ordinary title to any land or waters concerned and to the land adjoining, or surrounding, any waters concerned.

Division 3—Leases

241 Coverage of Division

This Division contains definitions relating to leases.

242 Lease

(1) The expression leaseincludes:

(a) a lease enforceable in equity; or

(b) a contract that contains a statement to the effect that it is a lease; or

(c) anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease.

References to mining lease

(2) In the case only of references to a mining lease, the expression lease also includes a licence issued, or an authority given, by or under a law of the Commonwealth, a State or a Territory.

243 Lessee

(1) Subject to subsection (2), the expression lessee includes any person who, by assignment, succession, sub‑lease or otherwise, acquires, enjoys or is entitled to exercise any of the interests under the lease of a lessee (including of a person who is a lessee because of another application or applications of this section).

Lessee of certain mining leases

(2) In the case of a lease that is a mining lease because of subsection 242(2) (which covers licences and authorities given by or under laws), the expression lessee means:

(a) the person to whom the licence mentioned in that subsection was issued, or the authority so mentioned was given; or

(b) any person who, by assignment, succession or otherwise, acquires or enjoys the licence or authority or is entitled to exercise rights under the licence or the authority.

244 Permit

Definition

(1) The expression permit, in a reference to a lease permitting a thing, means permit:

(a) expressly by the terms of the lease; or

(b) by implication from the terms of the lease; or

Example of implication from legislation

(2) An example of a thing permitted by implication from the operation of legislation is where the legislation states that, if a lease is not renewed, compensation is payable for any building constructed on the land subject to the lease. The construction of the building is permitted by implication from the statement.

245 Mining lease

Definition

(1) A mining lease is a lease (other than an agricultural lease, a pastoral lease or a residential lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for mining.

Mining leases to which subsection (3) applies

(2) Subject to subsection (4), subsection (3) applies to a mining lease if the lease was in force at the beginning of 1 January 1994 (the test time) and either or both of the following paragraphs apply:

(a) the following conditions are satisfied:

(i) a city, town or private residences had been wholly or partly constructed at the test time on a part of the land or waters covered by the lease;

(ii) the construction was permitted by the lease;

(iii) in the case of any private residences—they had been, or were being, constructed as fixtures and it was reasonably likely at the test time that, if mining under the lease were to cease at any later time, they would continue to be used as private residences;

(b) the following conditions are satisfied:

(i) other buildings or works had been wholly or partly constructed as fixtures at the test time, on a part of the land or waters covered by the lease, for carrying on an activity in connection with any city, town or private residences covered by paragraph (a);

(ii) the construction was permitted by the lease;

(iii) it was reasonably likely at the test time that, if mining under the lease were to cease at any later time, the buildings or works would continue to be used to carry on the same activity, or a similar activity, in connection with any city, town or private residences mentioned in paragraph (a).

Dissection of mining lease

(3) If this subsection applies to a mining lease, the lease is taken instead to consist of separate leases in respect of:

(a) the part of the land or waters in respect of which paragraph (2)(a) or (b), or both paragraphs, are satisfied; and

(b) the remainder of the land or waters.

Exclusion of certain cities, towns etc.

(4) The Commonwealth Minister may, by legislative instrument, determine that a specified city, town, private residence, building or works is not to be taken into account for the purposes of subsection (3).

246 Commercial lease

Definition

(1) A commercial lease is a lease (other than a mining lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for business or commercial purposes. The defining of agricultural lease, pastoral lease and residential lease in sections 247, 248 and 249 is not intended to limit the coverage of commercial lease.

Examples of a commercial lease

(2) For the purposes of subsection (1):

(a) construction on land of a building to be used for business or commercial purposes, or of a hotel, motel or tourist resort, is an example of use of the land for business or commercial purposes; and

(b) use of a building on land for business or commercial purposes, or operation of a hotel, motel or tourist resort on land, is an example of use of the land for business or commercial purposes.

247 Agricultural lease

(1) An agricultural lease is a lease that:

(a) permits the lessee to use the land or waters covered by the lease solely or primarily for agricultural purposes (which includes the planting and growing in the land of trees, vines or vegetables); or

(b) contains a statement to the effect that it is solely or primarily an agricultural lease or that it is granted solely or primarily for agricultural purposes.

Aquaculture

(2) Except in so far as the expression is used in or in relation to Division 2 of Part 2, agricultural lease also includes a lease that permits the lessee to use the land or waters covered by the lease solely or primarily for aquacultural purposes.

247A Exclusive agricultural lease

An exclusive agricultural leaseis an agricultural lease that:

(a) confers a right of exclusive possession over the land or waters covered by the lease; or

(b) is a Scheduled interest.

247B Non‑exclusive agricultural lease

A non‑exclusive agricultural lease is an agricultural lease that is not an exclusive agricultural lease.

Note: In practice, there might be few, or no, non‑exclusive agricultural leases.

248 Pastoral lease

A pastoral lease is a lease that:

(a) permits the lessee to use the land or waters covered by the lease solely or primarily for:

(i) maintaining or breeding sheep, cattle or other animals; or

(ii) any other pastoral purpose; or

(b) contains a statement to the effect that it is solely or primarily a pastoral lease or that it is granted solely or primarily for pastoral purposes.

248A Exclusive pastoral lease

An exclusive pastoral leaseis a pastoral lease that:

(a) confers a right of exclusive possession over the land or waters covered by the lease; or

(b) is a Scheduled interest.

248B Non‑exclusive pastoral lease

A non‑exclusivepastoral lease is a pastoral lease that is not an exclusive pastoral lease.

249 Residential lease

Definition

(1) A residential lease is a lease that permits the lessee to use the land or waters covered by the lease solely or primarily for constructing or occupying a private residence.

Examples of residential lease

(2) For the purposes of subsection (1):

(a) construction of a house or unit on land for a person to live in is an example of use of the land for constructing a private residence; and

(b) use of a house or unit on land that is leased out to a person to live in is an example of use of the land for occupying a private residence; and

(c) use of a hotel, motel, caravan or tent on land is an example of something that is not use of the land for occupying a private residence.

249A Community purposes lease

A community purposes leaseis a lease that:

(a) permits the lessee to use the land or waters covered by the lease solely or primarily for community, religious, educational, charitable or sporting purposes; or

(b) contains a statement to the effect that it is solely or primarily a community purposes lease or that it is granted solely or primarily for community, religious, educational, charitable or sporting purposes.

249B Perpetual lease

A perpetual lease is a lease with the following features:

(a) the lease is in perpetuity;

(b) the lease may be forfeited, cancelled or otherwise cease to have effect for failure to pay rent or for contravention of a condition or conditions.

249C Scheduled interest

(1) A Scheduled interest is:

(a) anything set out in Schedule 1, other than a mining lease or anything whose grant or vesting is covered by subsection 23B(9), (9A), (9B), (9C) or (10) (which provide that certain acts are not previous exclusive possession acts); or

(b) an interest, in relation to land or waters, of a type declared by a regulation for the purposes of this paragraph to be a Scheduled interest.

Regulations to cover single type of interest only

(2) A particular regulation only has effect for the purposes of paragraph (1)(b) if it covers a single type of interest.

Regulations to cover exclusive possession interests only

(3) Before the Governor‑General makes a regulation for the purposes of paragraph (1)(b) declaring a particular interest to be a Scheduled interest, the Minister must be satisfied that the interest confers a right of exclusive possession that extinguishes all native title rights and interests over the land or waters concerned.

Division 4—Sundry definitions etc.

250 Application to things happening before commencement

The use of the present tense in any provision of this Act does not imply that the provision does not apply to things happening before the commencement of the provision.

251A Authorising the making of indigenous land use agreements

For the purposes of this Act, persons holding native title in relation to land or waters in the area covered by an indigenous land use agreement authorise the making of the agreement if:

(a) where there is a process of decision‑making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind—the persons authorise the making of the agreement in accordance with that process; or

(b) where there is no such process—the persons authorise the making of the agreement in accordance with a process of decision‑making agreed to and adopted, by the persons who hold or may hold the common or group rights comprising the native title, in relation to authorising the making of the agreement or of things of that kind.

251B Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorisea person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a) where there is a process of decision‑making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b) where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision‑making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

251C Towns and cities

Areas in Western Australia

(1) Subject to subsection (4), a particular area in Western Australia is a town or city if, as at 23 December 1996, it was gazetted as a townsite or as suburban lands under section 10 of the Land Act 1933 of Western Australia.

Areas in South Australia

(2) Subject to subsection (4), a particular area in South Australia is a town or city if, as at 23 December 1996, it was:

(a) within the boundaries of a town constituted under section 5(g) of the Crown Lands Act 1929 of South Australia; or

(b) set apart as town lands, or suburban lands, by notice under section 5(h) of that Act; or

(d) gazetted in the South Australian Government Gazette, or proclaimed by the Governor of South Australia, as suburban lands, where the gazettal took place, or the proclamation was made, before the enactment of the Crown Lands Act 1929 of South Australia; or

(e) a township within the meaning of section 5(1) of the Local Government Act, 1934 of South Australia; or

(f) park land, within the meaning of section 5(1) of that Act, that was within or adjacent to a township within the meaning of that section; or

(g) the area in relation to which a municipal council was constituted under section 6 of that Act; or

(h) a township within the meaning of section 319 of that Act; or

(i) a township allotment within the meaning of section 5 of the Renmark Irrigation Trust Act 1936 of South Australia; or

(j) town lands within the meaning of section 5 of the Water Conservation Act 1936 of South Australia.

Areas in the Northern Territory

(3) Subject to subsection (4), a particular area in the Northern Territory is a town or city if, as at 23 December 1996, it was:

(a) gazetted as a town (other than the town of Darwin, Hatches Creek, Brocks Creek, Burrundie or Urapunga) under subsection 95(1) of the Crown Lands Act of the Northern Territory; or

(b) the area in the Schedule to the Darwin Lands Acquisition Act 1945 of the Commonwealth; or

Exclusion of areas in Western Australia, South Australia or Northern Territory

(4) A particular area is not a town or city under subsection (1), (2) or (3) if the Commonwealth Minister, by legislative instrument, so determines.

Other areas

(5) A particular area in any State or Territory is a town or city if the Commonwealth Minister determines, by legislative instrument, that, in his or her opinion, the area was a town or a city as at 23 December 1996.

Exclusion of ordinary meaning

(6) Except as mentioned in this section, an area is not a town or city.

251D Land or waters on which a public work is constructed, established or situated

In this Act, a reference to land or waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

252 Notify the public in the determined way

Definition

(1) The expression notify the public in the determined way means give notice in the way determined, by legislative instrument, by the Commonwealth Minister for the purposes of the provision in which the expression is used.

Examples of ways that may be determined

(2) Without limiting the ways that the Commonwealth Minister may determine, he or she may determine that the notice may be given:

(a) in newspapers (including newspapers catering mainly or exclusively for the interests of Aboriginal peoples or Torres Strait Islanders); or

(b) by radio broadcasts or television transmissions.

253 Other definitions

Unless the contrary intention appears:

Aboriginal peoples means peoples of the Aboriginal race of Australia.

Aboriginal/Torres Strait Islander land or watersmeans land or waters held by or for the benefit of Aboriginal peoples or Torres Strait Islanders under:

(a) any of the following laws of the Commonwealth:

(i) the Aboriginal Land Grant (Jervis Bay Territory) Act 1986;

(ii) the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987;

(iii) the Aboriginal Land Rights (Northern Territory) Act 1976; or

(b) any of the following laws of South Australia:

(i) the Aboriginal Lands Trust Act 1966;

(ii) the Maralinga Tjarutja Land Rights Act 1984;

(iii) the Pitjantjatjara Land Rights Act 1981; or

agent prescribed body corporate, in relation to native title rights and interests, means:

(a) a prescribed body corporate that is determined under section 57 in relation to the native title; or

(b) a prescribed body corporate that, under regulations made for the purposes of paragraph 56(4)(e), is to perform the functions referred to in subsection 57(3) in relation to the native title; or

(i) a prescribed body corporate referred to in paragraph (a) or (b); or

(ii) a prescribed body corporate that is an agent prescribed body corporate in relation to the native title because of an earlier application of this paragraph.

applicant has a meaning affected by subsection 61(2).

approved determination of native title has the meaning given by subsections 13(3), (4) and (7).

arbitral body has the meaning given by section 27.

assessor means an assessor appointed under Part VA of the Federal Court of Australia Act 1976.

authorise:

(a) in relation to the making of indigenous land area agreements—has the meaning given by section 251A; and

(b) in relation to the making of native title determination applications or compensation applications, and dealing with matters arising in relation to such applications—has the meaning given by section 251B.

Chief Justice means the Chief Justice of the Federal Court of Australia.

claimant application means a native title determination application that a native title claim group has authorised to be made, and, unless the contrary intention appears, includes such an application that has been amended.

coastal sea has the meaning given by subsection 15B(4) of the Acts Interpretation Act 1901.

common law holders has the meaning given by section 56.

Commonwealth Minister means the Minister applicable, in relation to the provision in which the expression is used, under section 19A of the Acts Interpretation Act 1901.

CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.

explore includes:

(a) conduct a geological, geophysical or geochemical survey; or

(b) take samples for the purpose of analysis.

Federal Court means the Federal Court of Australia.

forest operations means:

(a) the planting or tending, in a plantation or forest, of trees intended for felling; or

(b) the felling of such trees.

former judge means a person who has been a Justice of the High Court or a judge of another federal court or of the Supreme Court of a State or Territory.

Government party has the meaning given by subsection 26(1).

grantee party has the meaning given by paragraph 29(2)(c).

horticulture includes:

(a) propagation or maintenance, as well as cultivation; or

(b) propagation, maintenance or cultivation of seeds, bulbs, spores or similar things; or

(d) propagation, maintenance or cultivation in environments other than soil, whether natural or artificial.

indigenous land use agreement has the meaning given by sections 24BA, 24CA and 24DA.

infrastructure facility includes any of the following:

(a) a road, railway, bridge or other transport facility;

(b) a jetty or port;

(d) an electricity generation, transmission or distribution facility;

(e) a storage, distribution or gathering or other transmission facility for:

(i) oil or gas; or

(ii) derivatives of oil or gas;

(f) a storage or transportation facility for coal, any other mineral or any mineral concentrate;

(g) a dam, pipeline, channel or other water management, distribution or reticulation facility;

(h) a cable, antenna, tower or other communication facility;

(i) any other thing that is similar to any or all of the things mentioned in paragraphs (a) to (h) and that the Commonwealth Minister determines, by legislative instrument, to be an infrastructure facility for the purposes of this paragraph.

interest, in relation to land or waters, means:

(a) a legal or equitable estate or interest in the land or waters; or

(b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(i) the land or waters; or

(ii) an estate or interest in the land or waters; or

Judge means a Judge of the Federal Court.

jurisdictional limitsmeans:

(a) in relation to a State—the area within:

(i) the limits of the State; or

(ii) the coastal waters of the State (within the meaning of the Coastal Waters (State Powers) Act 1980); or

(b) in relation to the Northern Territory—the area within:

(i) the limits of the Territory; or

(ii) the coastal waters of the Territory (within the meaning of the Coastal Waters (Northern Territory Powers) Act 1980); or

land includes the airspace over, or subsoil under, land, but does not include waters.

Note 1: Because of the definition of waters, not only rivers and lakes etc., but also such things as the bed or subsoil under, and airspace over, rivers and lakes etc. will not be included in land.

Note 2: Because of the definition of waters, the area between high water and low water will not be included in land.

major earthworks means earthworks (other than in the course of mining) whose construction causes major disturbance to the land, or to the bed or subsoil under waters.

mediator means:

(a) in relation to an application—the person or body to which the application has been referred under subsection 86B(1) for mediation; or

(b) in relation to the whole or a part of a proceeding—the person or body to which the whole or the part of the proceeding has been referred under subsection 86B(5) for mediation.

member means a member of the Tribunal.

mine includes:

(a) explore or prospect for things that may be mined (including things covered by that expression because of paragraphs (b) and (c)); or

(b) extract petroleum or gas from land or from the bed or subsoil under waters; or

but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other than:

(d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or

(e) processing the sand, gravel, rocks or soil by non‑mechanical means.

National Native Title Register means the register established and maintained under Part 8.

National Native Title Tribunal or NNTTmeans the National Native Title Tribunal established under Part 6.

native title application inquiry has the meaning given by section 138C.

native title claim group means:

(a) in relation to a claim in an application for a determination of native title made to the Federal Court—the native title claim group mentioned in relation to the application in the table in subsection 61(1); or

(b) in relation to a claim in an application for an approved determination of native title made to a recognised State/Territory body—the person or persons making the claim, or on whose behalf the claim is made.

native title party has the meaning given by paragraphs 29(2)(a) and (b) and section 30.

Native Title Registrar means the Native Title Registrar appointed under Part 5.

negotiation party has the meaning given by section 30A.

non‑claimant application means a native title determination application that is not a claimant application.

non‑presidential member means a member who, in accordance with the table in subsection 110(1), is of the non‑presidential class.

offshore place means any land or waters to which this Act extends, other than land or waters in an onshore place.

onshore place means land or waters within the limits of a State or Territory to which this Act extends.

ordinary title, in relation to an onshore place that is land, means:

(a) if the land is not in the Australian Capital Territory or the Jervis Bay Territory—a freehold estate in fee simple in the land other than such an estate granted by or under a law that grants such estates only to or for the benefit of Aboriginal peoples or Torres Strait Islanders; or

(b) if the land is in the Australian Capital Territory or the Jervis Bay Territory—a lease over the land granted by or on behalf of the Commonwealth under a law of the Commonwealth or of the Territory, other than a lease granted by or under a law that grants such leases only to or for the benefit of Aboriginal peoples or Torres Strait Islanders.

paragraph 51(xxxi) acquisition of propertymeans an acquisition of property within the meaning of paragraph 51(xxxi) of the Constitution.

paragraph 51(xxxi) just terms means just terms within the meaning of paragraph 51(xxxi) of the Constitution.

person conducting the mediation means the person mentioned in subsection 94D(2) who conducts a conference under section 94D in relation to the mediation concerned.

prescribed means prescribed by the regulations.

President means the President of the Tribunal.

presidential member means a member who, in accordance with the table in section 110, is of the presidential class.

procedural right, in relation to an act, means:

(a) a right to be notified of the act; or

(b) a right to object to the act; or

(c) any other right that is available as part of the procedures that are to be followed when it is proposed to do the act.

public education facilities means education facilities operated by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities.

public health facilities means health facilities operated by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities.

public housing means housing operated by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities.

public workmeans:

(a) any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:

(i) a building, or other structure (including a memorial), that is a fixture; or

(ii) a road, railway or bridge; or

(iia) where the expression is used in or for the purposes of Division 2 or 2A of Part 2—a stock‑route; or

(iii) a well, or bore, for obtaining water; or

(iv) any major earthworks; or

(b) a building that is constructed with the authority of the Crown, other than on a lease.

Note: In addition, section 251D deals with land or waters relating to public works.

recognised State/Territory body means a court, office, tribunal or body in relation to which a determination under section 207A is in force.

Register of Indigenous Land Use Agreementsmeans the register established and maintained under Part 8A.

Register of Native Title Claims means the Register established and maintained in accordance with Part 7.

registered native title body corporate means:

(a) a prescribed body corporate whose name and address are registered on the National Native Title Register under paragraph 193(2)(e) or subsection 193(4); or

(b) a body corporate whose name and address are registered on the National Native Title Register under paragraph 193(2)(f).

registered native title claimant, in relation to land or waters, means a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to the land or waters.

Registrar means the Native Title Registrar.

representative Aboriginal/Torres Strait Islander bodymeans a body that is recognised under section 203AD.

representative body means a representative Aboriginal/Torres Strait Islander body.

right to negotiate application has the meaning given by paragraph 139(b).

special matter has the meaning given by paragraph 139(1)(c).

State Minister, in relation to a State, means:

(a) if there is no nomination under paragraph (b)—the Premier of the State; or

(b) a Minister of the Crown of the State nominated in writing given to the Commonwealth Minister by the Premier for the purposes of this definition.

statutory authority, in relation to the Crown in right of the Commonwealth, a State or a Territory, means any authority or body (including a corporation sole) established by a law of the Commonwealth, the State or Territory other than a general law allowing incorporation as a company or body corporate.

subject to section 24FA protection has the meaning given by Subdivision F of Division 3 of Part 2.

subsection 24DJ(1) objection application has the meaning given by paragraph 139(d).

Territory Minister, in relation to a Territory, means:

(a) if there is no nomination under paragraph (b)—the Chief Minister of the Territory; or

(b) a Minister of the Territory nominated in writing given to the Commonwealth Minister by the Chief Minister for the purposes of this definition.

Torres Strait Islander means a descendant of an indigenous inhabitant of the Torres Strait Islands.

Tribunal means the National Native Title Tribunal.

valid includes having full force and effect.

waters includes:

(a) sea, a river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters; or

(b) the bed or subsoil under, or airspace over, any waters (including waters mentioned in paragraph (a)); or

(c) the shore, or subsoil under or airspace over the shore, between high water and low water.
http://www.comlaw.gov.au/Details/C2012C00780

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Thursday, December 13, 2012

NATIVE TITLE ACT 1993 PART 15 DEFINITIONS

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