Western Australia
Native Title (State Provisions) Act 1999
Western Australia
Native Title (State Provisions) Act 1999
CONTENTS
1.1. Short title 2
1.2. Commencement 2
1.3. Objects 3
1.4. Act binds the Crown 3
1.5. Interpretation 3
1.6. Performance of certain functions on behalf of Minister 5
1.7. Replacement of person as objector etc. 6
1.8. Objector ceasing to be a registered native title claimant 6
Part 2 — Consultation procedures for alternative provision areas
Division 1 — Preliminary
2.1. Definitions 8
2.2. Request for determination under section 43A of the NTA 8
2.3. Transitional provisions 8
2.4. Object of this Part 8
Division 2 — Relevant future acts and their validity
2.5. Acts to which this Part applies 8
2.6. Circumstances in which act is not valid 8
2.7. Part 3 may be applied to a Part 2 act 8
2.8. Other statutory requirements not affected 9
Division 3 — Notices and objections
2.9. Proponent where act relates to mining 9
2.10. Identification of proponents in other cases 9
2.11. Closing day for objections 9
2.12. Notification of acts 9
2.13. Further provision as to notices 9
2.14. Who gives notice 9
2.15. Prescribed provisions about notice 9
2.16. Right to object to doing of act 9
2.17. Requirements for objections 9
2.18. Time limit 10
2.19. Government party to notify the Commission of objections 10
2.20. Withdrawal of request etc. by proponent 10
2.21. Withdrawal of proposal by Government party 10
Division 4 — Consultation and agreements
2.22. Meaning of “consultation parties” 10
2.23. Consultation 10
2.24. Involvement of Commission, including mediation 10
2.25. Withdrawal of objection 10
2.26. Agreement made by parties 10
Division 5 — Recommendations of the Commission
2.27. Commission may notify intention to hear 10
2.28. Consultations may continue 11
2.29. Dismissal of objections 11
2.30. Time for making recommendation 11
2.31. No recommendation if agreement etc. 11
2.32. Making of recommendation 11
2.33. Criteria for making recommendations 11
2.34. Issues on which parties agree 11
2.35. Copy of recommendation to be given 11
2.36. Effect of recommendation 11
2.37. Effect of recommendation that specifies conditions 11
Division 6 — Overruling of recommendations
2.38. Responsible Minister may overrule a recommendation 12
2.39. Determinations that responsible Minister may make 12
2.40. Consultation before making of determination 12
2.41. Ground on which determination may be made 12
2.42. Conditions in determination 12
2.43. Copy of determination to be laid before Parliament 12
2.44. Responsible Minister may declare intention not to overrule 12
Division 7 — Applications
2.45. Definition 12
2.46. Form and contents of application 12
2.47. Material and fees to accompany applications 12
2.48. Application fee may be waived 13
Division 8 — Judicial review
2.49. Application for review 13
2.50. Time limit for application 13
2.51. Procedure 13
2.52. Grounds on which application may be made 13
2.53. Powers of Court 13
2.54. Effect on other remedies 13
Part 3 — Right to negotiate procedures for areas not covered by Part 2
Division 1 — Preliminary
3.1. Request for determination under section 43(1)(b) of the NTA 14
3.2. Transitional provisions 14
3.3. Object of this Part 14
Division 2 — Relevant future acts and their validity
3.4. Acts to which this Part applies 14
3.5. Circumstances in which act is not valid 14
3.6. Other statutory requirements not affected 14
Division 3 — Notices and objections
3.7. Proponent where act relates to mining 14
3.8. Identification of proponents in other cases 15
3.9. Closing day for objections 15
3.10. Notification of acts 15
3.11. Further provision as to notices 15
3.12. Notice may relate to 2 or more acts 15
3.13. Who gives notice 15
3.14. Prescribed provisions about notice 15
3.15. Right to object to doing of act 15
3.16. Requirements for objections 15
3.17. Time limit 15
3.18. Government party to notify the Commission of objections 15
3.19. Withdrawal of request etc. by proponent 16
3.20. Withdrawal of proposal by Government party 16
Division 4 — Negotiations and agreements
3.21. Meaning of “negotiation parties” 16
3.22. Negotiations 16
3.23. Involvement of Commission, including mediation 16
3.24. Withdrawal of objection 16
3.25. Agreement made by parties 16
3.26. Commission’s function in respect of an agreement 16
3.27. Effect of conditional agreement 16
Division 5 — Determinations
Subdivision 1 — Ministerial determination where Commission determination unreasonably delayed
3.28. Responsible Minister may give Commission notice as to urgency17
3.29. Responsible Minister may make determination 17
3.30. Grounds for making determination 17
3.31. Consultation with Commonwealth Minister 17
3.32. Notice and submissions etc. 17
3.33. Material etc. taken into account 17
3.34. Minister’s power not limited 17
3.35. No duty to make determination 17
3.36. Conditions to have contractual effect 17
3.37. Copy of determination to be given 18
3.38. Copy of determination to be laid before Parliament 18
Subdivision 2 — Determination by Commission
3.39. Commission may notify intention to hear 18
3.40. Negotiations may continue 18
3.41. Dismissal of objections 18
3.42. Time for making determination 18
3.43. No determination if agreement etc. 18
3.44. Making of determination 18
3.45. Criteria for making determinations 18
3.46. Issues on which parties agree 18
3.47. Determination may provide for issues to be resolved later 19
3.48. No reopening of certain issues previously decided 19
3.49 Copy of determination to be given 19
3.50. Effect of conditional determination 19
Division 6 — Overruling of Commission’s determination
3.51. Responsible Minister may overrule 19
3.52. Declarations that responsible Minister may make 19
3.53. Grounds on which declaration may be made 19
3.54. Conditions in declaration 19
3.55. Copy of declaration to be laid before Parliament 19
3.56. Responsible Minister may declare intention not to overrule 19
Division 7 — Applications
3.57. Definition 20
3.58. Form and contents of application 20
3.59. Material and fees to accompany applications 20
3.60. Application fee may be waived 20
Part 4 — Consultation procedures for acts to which section 24MD(6B) of the NTA applies
Division 1 — Preliminary
4.1. Object of this Part 21
4.2. Acts to which this Part applies 21
4.3. Requirements to be satisfied before a Part 4 act is done 21
4.4. Other statutory requirements not affected 21
Division 2 — Notices and objections
4.5. Proponent where act relates to mining 21
4.6. Identification of proponents in other cases 21
4.7. Closing day for objections 21
4.8. Notification of acts by Government party 21
4.9. Further provision as to notices 21
4.10. Prescribed provisions about notice 22
4.11. Right to object to doing of act 22
4.12. Requirements for objections 22
4.13. Time limit 22
4.14. Government party to notify the Commission of objections 22
4.15. Withdrawal of request etc. by proponent 22
4.16. Withdrawal of proposal by Government party 22
Division 3 — Consultation and agreements
4.17. Meaning of “consultation parties” 22
4.18. Consultation 22
4.19. Involvement of Commission, including mediation 22
4.20. Withdrawal of objection 23
4.21. Agreement made by parties 23
Division 4 — Recommendations of the Commission
4.22. Commission may notify intention to hear 23
4.23. Consultations may continue 23
4.24. Dismissal of objections 23
4.25. Time for making recommendation 23
4.26. No recommendation if agreement etc. 23
4.27. Making of recommendation 23
4.28. Criteria for making recommendations 23
4.29. Issues on which parties agree 23
4.30. Copy of recommendation to be given 24
4.31. Effect of recommendation 24
4.32. Effect of recommendation that specifies conditions 24
Division 5 — Overruling of recommendations
4.33. Responsible Minister may overrule a recommendation 24
4.34. Determinations that responsible Minister may make 24
4.35. Consultation before making of determination 24
4.36. Ground on which determination may be made 24
4.37. Conditions in determination 24
4.38. Copy of determination to be laid before Parliament 24
4.39. Responsible Minister may declare intention not to overrule 24
Division 6 — Applications
4.40. Definition 25
4.41. Form and contents of application 25
4.42. Material and fees to accompany applications 25
4.43. Application fee may be waived 25
Part 5 — Provisions relating to compensation
Division 1 — Preliminary
5.1. Definition 26
Division 2 — Determination of compensation
5.2. Commission to determine compensation for certain acts 26
5.3. Parties may agree on compensation 26
5.4. Enforcement of order for compensation 26
Division 3 — Principles to be applied in the determination of compensation
5.5. No multiple compensation for essentially same act 26
5.6. Compensation principles to be as for ordinary title 26
5.7. Compensation to be monetary 26
5.8. Requests for non‑monetary compensation 26
Division 4 — Determination of amounts to be held in trust and payment of those amounts
5.9. Conditions for payment of amounts to be held in trust 27
5.10. How amounts held in trust to be dealt with 27
5.11. Section 5.10(a) or (b) cases 27
5.12. Section 5.10(c) cases 27
5.13. Section 5.10(d) cases where monetary compensation 27
5.14. Section 5.10(d) cases where non‑monetary compensation 27
5.15. Section 5.10(d) cases where no compensation 27
5.16. Section 5.10(e) cases 27
5.17. Jurisdiction of the Commission under this Division 27
Part 6 — Native Title Commission
Division 1 — Commission established
6.1. Establishment of Commission 28
6.2. Functions of Commission 28
6.3. Requirements for fairness etc. to be observed 28
6.4. Membership of the Commission 28
6.5. Eligibility for appointment as Chief Commissioner 28
6.6. Appointment of member of NNTT 28
6.7. Qualifications for appointment 28
6.8. Ordinary members, notice of proposed appointment 28
6.9. Administrative functions of Chief Commissioner 28
6.10. Authorization of Chief Commissioner for purposes of section 199F of the NTA 29
6.11. Delegation to members 29
6.12. Other provisions relating to members 29
Division 2 — Staff of the Commission
6.13. Use of government staff etc. 29
6.14. Consultants 29
Division 3 — Operation of Commission
Subdivision 1 — How Commission to be constituted
6.15. General position 29
6.16. Constitution of Commission for the performance of certain functions 29
6.17. Concurrent operations 29
Subdivision 2 — Arrangement of business
6.18. Arrangement of business of the Commission 30
6.19. Unavailability of member 30
6.20. Completion of part‑heard proceedings 30
Subdivision 3 — Hearings
6.21. Commission to hold hearings 30
6.22. Commission may determine whether matters are to be grouped together 30
6.23. Opportunity to make submissions 30
6.24. Questions to be decided by majority 30
6.25. Representation before Commission 30
6.26. Participation by telephone, etc. 30
6.27. Hearings normally to be public 31
Subdivision 4 — Evidence and information
6.28. Evidence and findings of other bodies 31
6.29. Commission may prohibit disclosure of evidence 31
6.30. Power of Commission to summon 31
6.31. Power of Commission to take evidence 31
6.32. Power of the Commission to require answers 31
6.33. Commission may authorize another person to take evidence 31
6.34. Interpreters 31
6.35. Retention and copying of documents 31
Subdivision 5 — Recommendations and determinations
6.36. Recommendations and determinations 31
Division 4 — Financial provisions
6.37. Funds for carrying out this Act 32
6.38. Native Title Commission Account 32
6.39. Application of Financial Administration and Audit Act 198532
Division 5 — General
6.40. Communication of information in certain cases 32
6.41. Reference of question of law to the Supreme Court 32
6.42. Offences 32
6.43. Disclosure of interests 32
6.44. Protection of members and persons appearing before the Commission 32
6.45. Confidentiality 32
Part 7 — Miscellaneous
7.1. Regulations 33
7.2. Review of Act 33
7.3. Consequential amendments 33
7.4. Transitional provisions 33
Schedule 1 — Provisions relating to members of the Commission 35
Schedule 2 — Consequential amendments 36
Schedule 3 — Transitional provisions 37
Division 1 — Existing applications for mining tenements 37
1. Definition 37
2. Regulations may modify certain provisions 37
3. Programme for dealing with existing mining applications 37
Division 2 — Matters in progress under section 24MD(6B) of the NTA 38
4. Definition 38
5. Regulations may make transitional provisions 38
Notes
Compilation Table 40
Provisions that have not come into operation 40
Western Australia
Native Title (State Provisions) Act 1999
An Act to make —
·alternative provisions to those contained in Part 2 Division 3 Subdivision P of the Native Title Act 1993 of the Commonwealth, in accordance with sections 43 and 43A of that Act;
·provisions that are supplementary to those in section 24MD(6B) of that Act; and
·provision for delegations in respect of the State under section 199F of that Act,
to consequentially amend certain Acts, and for related purposes.
1.1. Short title
This Act may be cited as the Native Title (State Provisions) Act 1999.
1.2. Commencement
(1) Subject to this section, this Act comes into operation on the day on which it receives the Royal Assent.
(2) The provisions of Part 4, Divisions 1
(a) on such day as is fixed by proclamation; or
(b) on such days as are respectively so fixed.
(3) Part 2, other than section 2.2
(4) Part 3, other than section 3.1
(5) Division 4
(6) Section 7.3
(a) the Part 2 commencement day;
(b) the Part 3 commencement day; or
(c) the day on which Part 4 commences,
whichever is the earliest or, if those days are the same day, on that day.
(7) The Minister is to cause notice of each of the Part 2 commencement day and the Part 3 commencement day to be published in the Gazette as soon as it is reasonably practicable for the Minister to do so.
1.3. Objects
The objects of this Act are those set out in —
(a) sections 2.4
(b) section 4.1
(c) section 6.10 (which relates to the delegation of powers to the Chief Commissioner under section 199F of the NTA).
1.4. Act binds the Crown
This Act binds the Crown —
(a) in right of Western Australia; and
(b) so far as the legislative power of the Parliament permits, in all its other capacities.
1.5. Interpretation
(1) In this Act the Native Title Act 1993 of the Commonwealth is referred to as the NTA.
(2) A word or expression used in this Act has the same meaning as it has in the NTA unless —
(a) this Act gives it another meaning; or
(b) the contrary intention appears in some other way.
Note: A list of words and expressions used in this Act and defined in the NTA is attached to this Act. The list shows where in the NTA each definition can be found.
(3) The expression “Commonwealth Minister” when used in this Act in relation to a provision of the NTA has the same meaning as it has in that provision.
(4) In this Act, unless the contrary intention appears —
“Chief Commissioner” means the person appointed as such under section 6.4(2)
“closing day”, in relation to a Part 2 act, a Part 3 act or a Part 4 act, means —
(a) the day fixed under section 2.11
(b) the later day fixed under section 2.18(2), 3.17(2) or 4.13(2) for that purpose,
as the case may require;
“Commission” means the body established by section 6.1
“consultation parties” has the meaning given by section 2.22
“Government party” means the person who has power to do, on behalf of the State, an act of the kind referred to in section 2.5
“member” means a member of the Commission and includes the Chief Commissioner;
“negotiation parties” has the meaning given by section 3.21
“objector” means a person who has made an objection under section 2.16
“ordinary member” means a member of the Commission other than the Chief Commissioner;
“Part 2 act” has the meaning given by section 2.5
“Part 3 act” has the meaning given by section 3.4
“Part 4 act” has the meaning given by section 4.2
“proponent” means a person who is a proponent under section 2.9, 2.10, 3.7, 3.8, 4.5 or 4.6
“recommendation” means a recommendation of the Commission under section 2.32
“registered native title rights and interests” means —
(a) where the person to whom the expression refers is a registered native title claimant, the native title rights and interests described in the relevant entry on the Register of Native Title Claims; and
(b) where the person to whom the expression refers is a registered native title body corporate, the native title rights and interests described in the relevant entry on the National Native Title Register;
“relevant land” —
(a) in Parts 2 and 4, means the land or waters to which the Part 2 act or the Part 4 act concerned relates;
(b) in Part 3, means the land or waters that would be affected by the Part 3 act concerned if it were done; and
(c) in section 5.2(1), has the meaning specified in paragraph (a) or (b) that is appropriate to the act concerned;
“responsible Minister”, in relation to a Part 2 act, a Part 3 act or a Part 4 act, means the Minister responsible for the administration of the Act under which the act would be done.
(5) To avoid doubt it is declared that references in this Act to “written law” are to a written law of the State.
(6) Notes in this Act are provided to assist understanding and do not form part of the Act.
1.6.
(1) Where a Government party is a Minister of the Crown the consultation or negotiation functions of the Government party under Part 2
(2) Nothing in this Act is to be read as preventing the exercise by a Government party of a power of delegation conferred by a written law.
1.7. Replacement of person as objector etc.
(1) If —
(a) a person becomes a registered native title claimant because the person replaces another person as the applicant in relation to a native title determination application under section 61 of the NTA; and
(b) the other person is an objector, a consultation party or a negotiation party,
the first‑mentioned person also replaces the other person in his or her capacity referred to in paragraph (b).
(2) If —
(a) a registered native title claimant in relation to a determination application under section 61 of the NTA is an objector, a consultation party or a negotiation party in relation to an act; and
(b) as a result of a determination of an application under that section a body corporate becomes a registered native title body corporate in relation to the relevant land,
the registered native title body corporate replaces the registered native title claimant as the objector, consultation party or negotiation party in relation to the act.
1.8. Objector ceasing to be a registered native title claimant
If a person who has lodged an objection under section 2.16(1)(b), 3.15(1)(b) or 4.11(1)(b) ceases to be a registered native title claimant, the person also ceases to be an objector, a consultation party or a negotiation party, as the case may be.
Part
Division 1 — Preliminary
2.1. Definitions
[to be inserted 2]
2.
The State Minister may, on behalf of the State, request the Commonwealth Minister to make a determination under section 43A of the NTA that —
(a) the provisions of this Part comply with section 43A(4) and (6) of the NTA; and
(b) the requirements of section 43A(7) are complied with.
2.3. Transitional provisions
[to be inserted 2]
2.4. Object of this Part
[to be inserted 2]
Division 2 — Relevant future acts and their validity
2.5. Acts to which this Part applies
[to be inserted 2]
2.6. Circumstances in which act is not valid
[to be inserted 2]
2.7. Part 3 may be applied to a Part 2 act
[to be inserted 2]
2.8. Other statutory requirements not affected
[to be inserted 2]
Division 3 — Notices and objections
2.9. Proponent where act relates to mining
[to be inserted 2]
2.10. Identification of proponents in other cases
[to be inserted 2]
2.11. Closing day for objections
[to be inserted 2]
2.12. Notification of acts
[to be inserted 2]
2.13. Further provision as to notices
[to be inserted 2]
2.14. Who gives notice
[to be inserted 2]
2.15. Prescribed provisions about notice
[to be inserted 2]
2.16. Right to object to doing of act
[to be inserted 2]
2.17. Requirements for objections
[to be inserted 2]
2.18. Time limit
[to be inserted 2]
2.19. Government party to notify the Commission of objections
[to be inserted 2]
2.20. Withdrawal of request etc. by proponent
[to be inserted 2]
2.21. Withdrawal of proposal by Government party
[to be inserted 2]
Division 4 — Consultation and agreements
2.22. Meaning of “consultation parties”
[to be inserted 2]
2.23. Consultation
[to be inserted 2]
2.24. Involvement of Commission, including mediation
[to be inserted 2]
2.25. Withdrawal of objection
[to be inserted 2]
2.26. Agreement made by parties
[to be inserted 2]
Division 5 — Recommendations of the Commission
2.27. Commission may notify intention to hear
[to be inserted 2]
2.28. Consultations may continue
[to be inserted 2]
2.29. Dismissal of objections
[to be inserted 2]
2.30. Time for making recommendation
[to be inserted 2]
2.31. No recommendation if agreement etc.
[to be inserted 2]
2.32. Making of recommendation
[to be inserted 2]
2.33. Criteria for making recommendations
[to be inserted 2]
2.34. Issues on which parties agree
[to be inserted 2]
2.35. Copy of recommendation to be given
[to be inserted 2]
2.36. Effect of recommendation
[to be inserted 2]
2.37. Effect of recommendation that specifies conditions
[to be inserted 2]
Division 6 — Overruling of recommendations
2.38. Responsible Minister may overrule a recommendation
[to be inserted 2]
2.39. Determinations that responsible Minister may make
[to be inserted 2]
2.40. Consultation before making of determination
[to be inserted 2]
2.41. Ground on which determination may be made
[to be inserted 2]
2.42. Conditions in determination
[to be inserted 2]
2.43. Copy of determination to be laid before Parliament
[to be inserted 2]
2.44. Responsible Minister may declare intention not to overrule
[to be inserted 2]
Division 7 — Applications
2.45. Definition
[to be inserted 2]
2.46. Form and contents of application
[to be inserted 2]
2.47. Material and fees to accompany applications
[to be inserted 2]
2.48. Application fee may be waived
[to be inserted 2]
Division 8 — Judicial review
2.49. Application for review
[to be inserted 2]
2.50. Time limit for application
[to be inserted 2]
2.51. Procedure
[to be inserted 2]
2.52. Grounds on which application may be made
[to be inserted 2]
2.53. Powers of Court
[to be inserted 2]
2.54. Effect on other remedies
[to be inserted 2]
Part 3 — Right to negotiate procedures for areas not covered by Part 2
Division 1 — Preliminary
3.
The State Minister may, on behalf of the State, request the Commonwealth Minister to make a determination under section 43(1)(b) of the NTA that the provisions of this Part comply with section 43(2) of the NTA.
3.2. Transitional provisions
[to be inserted 2]
3.3. Object of this Part
[to be inserted 2]
Division 2 — Relevant future acts and their validity
3.4. Acts to which this Part applies
[to be inserted 2]
3.5. Circumstances in which act is not valid
[to be inserted 2]
3.6. Other statutory requirements not affected
[to be inserted 2]
Division 3 — Notices and objections
3.7. Proponent where act relates to mining
[to be inserted 2]
3.8. Identification of proponents in other cases
[to be inserted 2]
3.9. Closing day for objections
[to be inserted 2]
3.10. Notification of acts
[to be inserted 2]
3.11. Further provision as to notices
[to be inserted 2]
3.12. Notice may relate to 2 or more acts
[to be inserted 2]
3.13. Who gives notice
[to be inserted 2]
3.14. Prescribed provisions about notice
[to be inserted 2]
3.15. Right to object to doing of act
[to be inserted 2]
3.16. Requirements for objections
[to be inserted 2]
3.17. Time limit
[to be inserted 2]
3.18. Government party to notify the Commission of objections
[to be inserted 2]
3.19. Withdrawal of request etc. by proponent
[to be inserted 2]
3.20. Withdrawal of proposal by Government party
[to be inserted 2]
Division 4 — Negotiations and agreements
3.21. Meaning of “negotiation parties”
[to be inserted 2]
3.22. Negotiations
[to be inserted 2]
3.23. Involvement of Commission, including mediation
[to be inserted 2]
3.24. Withdrawal of objection
[to be inserted 2]
3.25. Agreement made by parties
[to be inserted 2]
3.26. Commission’s function in respect of an agreement
[to be inserted 2]
3.27. Effect of conditional agreement
[to be inserted 2]
Division 5 — Determinations
Subdivision 1 — Ministerial determination where Commission determination unreasonably delayed
3.28. Responsible Minister may give Commission notice as to urgency
[to be inserted 2]
3.29. Responsible Minister may make determination
[to be inserted 2]
3.30. Grounds for making determination
[to be inserted 2]
3.31. Consultation with Commonwealth Minister
[to be inserted 2]
3.32. Notice and submissions etc.
[to be inserted 2]
3.33. Material etc. taken into account
[to be inserted 2]
3.34. Minister’s power not limited
[to be inserted 2]
3.35. No duty to make determination
[to be inserted 2]
3.36. Conditions to have contractual effect
[to be inserted 2]
3.37. Copy of determination to be given
[to be inserted 2]
3.38. Copy of determination to be laid before Parliament
[to be inserted 2]
Subdivision 2 — Determination by Commission
3.39. Commission may notify intention to hear
[to be inserted 2]
3.40. Negotiations may continue
[to be inserted 2]
3.41. Dismissal of objections
[to be inserted 2]
3.42. Time for making determination
[to be inserted 2]
3.43. No determination if agreement etc.
[to be inserted 2]
3.44. Making of determination
[to be inserted 2]
3.45. Criteria for making determinations
[to be inserted 2]
3.46. Issues on which parties agree
[to be inserted 2]
3.47. Determination may provide for issues to be resolved later
[to be inserted 2]
3.48. No reopening of certain issues previously decided
[to be inserted 2]
3.49 Copy of determination to be given
[to be inserted 2]
3.50. Effect of conditional determination
[to be inserted 2]
Division 6 — Overruling of Commission’s determination
3.51. Responsible Minister may overrule
[to be inserted 2]
3.52. Declarations that responsible Minister may make
[to be inserted 2]
3.53. Grounds on which declaration may be made
[to be inserted 2]
3.54. Conditions in declaration
[to be inserted 2]
3.55. Copy of declaration to be laid before Parliament
[to be inserted 2]
3.56. Responsible Minister may declare intention not to overrule
[to be inserted 2]
Division 7 — Applications
3.57. Definition
[to be inserted 2]
3.58. Form and contents of application
[to be inserted 2]
3.59. Material and fees to accompany applications
[to be inserted 2]
3.60. Application fee may be waived
[to be inserted 2]
Part
Division 1 — Preliminary
4.1. Object of this Part
[to be inserted 2]
4.2. Acts to which this Part applies
[to be inserted 2]
4.3. Requirements to be satisfied before a Part 4 act is done
[to be inserted 2]
4.4. Other statutory requirements not affected
[to be inserted 2]
Division 2 — Notices and objections
4.5. Proponent where act relates to mining
[to be inserted 2]
4.6. Identification of proponents in other cases
[to be inserted 2]
4.7. Closing day for objections
[to be inserted 2]
4.8. Notification of acts by Government party
[to be inserted 2]
4.9. Further provision as to notices
[to be inserted 2]
4.10. Prescribed provisions about notice
[to be inserted 2]
4.11. Right to object to doing of act
[to be inserted 2]
4.12. Requirements for objections
[to be inserted 2]
4.13. Time limit
[to be inserted 2]
4.14. Government party to notify the Commission of objections
[to be inserted 2]
4.15. Withdrawal of request etc. by proponent
[to be inserted 2]
4.16. Withdrawal of proposal by Government party
[to be inserted 2]
Division 3 — Consultation and agreements
4.17. Meaning of “consultation parties”
[to be inserted 2]
4.18. Consultation
[to be inserted 2]
4.19. Involvement of Commission, including mediation
[to be inserted 2]
4.20. Withdrawal of objection
[to be inserted 2]
4.21. Agreement made by parties
[to be inserted 2]
Division 4 — Recommendations of the Commission
4.22. Commission may notify intention to hear
[to be inserted 2]
4.23. Consultations may continue
[to be inserted 2]
4.24. Dismissal of objections
[to be inserted 2]
4.25. Time for making recommendation
[to be inserted 2]
4.26. No recommendation if agreement etc.
[to be inserted 2]
4.27. Making of recommendation
[to be inserted 2]
4.28. Criteria for making recommendations
[to be inserted 2]
4.29. Issues on which parties agree
[to be inserted 2]
4.30. Copy of recommendation to be given
[to be inserted 2]
4.31. Effect of recommendation
[to be inserted 2]
4.32. Effect of recommendation that specifies conditions
[to be inserted 2]
Division 5 — Overruling of recommendations
4.33. Responsible Minister may overrule a recommendation
[to be inserted 2]
4.34. Determinations that responsible Minister may make
[to be inserted 2]
4.35. Consultation before making of determination
[to be inserted 2]
4.36. Ground on which determination may be made
[to be inserted 2]
4.37. Conditions in determination
[to be inserted 2]
4.38. Copy of determination to be laid before Parliament
[to be inserted 2]
4.39. Responsible Minister may declare intention not to overrule
[to be inserted 2]
Division 6 — Applications
4.40. Definition
[to be inserted 2]
4.41. Form and contents of application
[to be inserted 2]
4.42. Material and fees to accompany applications
[to be inserted 2]
4.43. Application fee may be waived
[to be inserted 2]
Part
Division 1 — Preliminary
5.1. Definition
[to be inserted 2]
Division 2 — Determination of compensation
5.2. Commission to determine compensation for certain acts
[to be inserted 2]
5.3. Parties may agree on compensation
[to be inserted 2]
5.4. Enforcement of order for compensation
[to be inserted 2]
Division 3 — Principles to be applied in the determination of compensation
5.5. No multiple compensation for essentially same act
[to be inserted 2]
5.6. Compensation principles to be as for ordinary title
[to be inserted 2]
5.7. Compensation to be monetary
[to be inserted 2]
5.8. Requests for non‑monetary compensation
[to be inserted 2]
Division 4 — Determination of amounts to be held in trust and payment of those amounts
5.9. Conditions for payment of amounts to be held in trust
[to be inserted 2]
5.10. How amounts held in trust to be dealt with
[to be inserted 2]
5.11. Section 5.10(a) or (b) cases
[to be inserted 2]
5.12. Section 5.10(c) cases
[to be inserted 2]
5.13. Section 5.10(d) cases where monetary compensation
[to be inserted 2]
5.14. Section 5.10(d) cases where non‑monetary compensation
[to be inserted 2]
5.15. Section 5.10(d) cases where no compensation
[to be inserted 2]
5.16. Section 5.10(e) cases
[to be inserted 2]
5.17. Jurisdiction of the Commission under this Division
[to be inserted 2]
Part 6 — Native Title Commission
Division 1 — Commission established
6.1. Establishment of Commission
[to be inserted 2]
6.2. Functions of Commission
[to be inserted 2]
6.3. Requirements for fairness etc. to be observed
[to be inserted 2]
6.4. Membership of the Commission
[to be inserted 2]
6.5. Eligibility for appointment as Chief Commissioner
[to be inserted 2]
6.6. Appointment of member of NNTT
[to be inserted 2]
6.7. Qualifications for appointment
[to be inserted 2]
6.8. Ordinary members, notice of proposed appointment
[to be inserted 2]
6.9. Administrative functions of Chief Commissioner
[to be inserted 2]
6.10. Authorization of Chief Commissioner for purposes of section 199F of the NTA
[to be inserted 2]
6.11. Delegation to members
[to be inserted 2]
6.12. Other provisions relating to members
[to be inserted 2]
Division 2 — Staff of the Commission
6.13. Use of government staff etc.
[to be inserted 2]
6.14. Consultants
[to be inserted 2]
Division 3 — Operation of Commission
Subdivision 1 — How Commission to be constituted
6.15. General position
[to be inserted 2]
6.16. Constitution of Commission for the performance of certain functions
[to be inserted 2]
6.17. Concurrent operations
[to be inserted 2]
Subdivision 2 — Arrangement of business
6.18. Arrangement of business of the Commission
[to be inserted 2]
6.19. Unavailability of member
[to be inserted 2]
6.20. Completion of part‑heard proceedings
[to be inserted 2]
Subdivision 3 — Hearings
6.21. Commission to hold hearings
[to be inserted 2]
6.22. Commission may determine whether matters are to be grouped together
[to be inserted 2]
6.23. Opportunity to make submissions
[to be inserted 2]
6.24. Questions to be decided by majority
[to be inserted 2]
6.25. Representation before Commission
[to be inserted 2]
6.26. Participation by telephone, etc.
[to be inserted 2]
6.27. Hearings normally to be public
[to be inserted 2]
Subdivision 4 — Evidence and information
6.28. Evidence and findings of other bodies
[to be inserted 2]
6.29. Commission may prohibit disclosure of evidence
[to be inserted 2]
6.30. Power of Commission to summon
[to be inserted 2]
6.31. Power of Commission to take evidence
[to be inserted 2]
6.32. Power of the Commission to require answers
[to be inserted 2]
6.33. Commission may authorize another person to take evidence
[to be inserted 2]
6.34. Interpreters
[to be inserted 2]
6.35. Retention and copying of documents
[to be inserted 2]
Subdivision 5 — Recommendations and determinations
6.36. Recommendations and determinations
[to be inserted 2]
Division 4 — Financial provisions
6.37. Funds for carrying out this Act
[to be inserted 2]
6.38. Native Title Commission Account
[to be inserted 2]
6.39. Application of Financial Administration and Audit Act 1985
[to be inserted 2]
Division 5 — General
6.40. Communication of information in certain cases
[to be inserted 2]
6.41. Reference of question of law to the Supreme Court
[to be inserted 2]
6.42. Offences
[to be inserted 2]
6.43. Disclosure of interests
[to be inserted 2]
6.44. Protection of members and persons appearing before the Commission
[to be inserted 2]
6.45. Confidentiality
[to be inserted 2]
Part 7 — Miscellaneous
7.1. Regulations
(1) The Governor may make regulations prescribing all matters that are required or permitted to be prescribed or are necessary or convenient to be prescribed for the purposes of this Act.
(2) Without limiting subsection (1), the regulations may prescribe fees that are to be paid in connection with applications to, and proceedings in, the Commission.
7.2. Review of Act
(1) The Minister is to carry out and complete a review of the operation and effectiveness of this Act within 12 months after the 5th anniversary of the commencement of any provision of Part 6.
(2) In carrying out the review the Minister is to have particular regard to whether the public policy objectives of this Act remain valid and whether its provisions remain appropriate for achieving those objectives.
(3) The Minister is to prepare a report based on the review and cause the report to be laid before each House of Parliament as soon as is practicable after it is completed.
[To be inserted 1a.]
(1) Despite anything in Part 2 or Part 3, that Part does not apply to an act that would, apart from this subsection, be a Part 2 act or a Part 3 act if, before the commencement of that Part, all notices provided for by section 29 of the NTA have been given in relation to the act.
(2) Division 1 of Schedule 3 has effect to enable regulations of a transitional nature to be made as to certain matters in progress at the commencement of Part 2 and Part 3.
(3) Division 2 of Schedule 3 has effect to enable regulations of a transitional nature to be made as to matters in progress under section 24MD(6B) of the NTA at the commencement of Part 4.
Schedule 1 — Provisions relating to members of the Commission
[See section 6.12.]
Schedule 2 —
[See section 7.3.]
Schedule 3 — Transitional provisions
Division 1 — Existing applications for mining tenements
1. Definition
In this Division —
“existing mining application” means an application —
(a) for a Part 2 act or a Part 3 act to be done that would —
(i) create or vary a right to mine; or
(ii) renew, re‑grant, remake or extend the term of an instrument creating a right to mine; and
(b) that —
(i) was made before the commencement of Part 2 or Part 3, as the case may be; but
(ii) was not granted before that commencement.
2. Regulations may modify certain provisions
The regulations may make provisions by which sections 2.14
3. Programme for dealing with existing mining applications
(1) The regulations may make provisions that establish a programme by which the giving of notices under sections 2.12
(2) The purpose of the programme is to enable the processes in Parts 2 and 3 to be applied to the acts concerned in an orderly and effective manner.
(3) In particular, the regulations may provide, as part of the programme, for the giving of notices of acts relating to areas of the State specified in the regulations to be limited to a certain number of acts during a period so specified.
Division 2 — Matters in progress under section 24MD(6B) of the NTA
4. Definition
(1) In this Division —
“section 24MD(6B) matter” means, subject to this clause, an act, matter or circumstance that has occurred or come into existence before the commencement of Part 4 for the purpose of —
(a) the State meeting its obligations; or
(b) a person exercising rights or performing functions,
under subsection (6B) of section 24MD of the NTA, or otherwise for the purposes of that subsection.
(2) The definition in subclause (1) includes notices given, time that has elapsed or commenced to run, objections made, requests for a hearing and, subject to subclause (3), proceedings commenced.
(3) The definition does not include —
(a) proceedings commenced if the independent person referred to in section 24MD(6B) has entered upon the proceedings to the extent of holding a hearing; or
(b) determinations or recommendations made.
5. Regulations may make transitional provisions
(1) The regulations may make any provision of a transitional nature that is necessary or expedient to be made to ensure that, after the commencement of Part 4 —
(a) all section 24MD(6B) matters are dealt with under that Part; and
(b) there is an effective transition from the provisions of section 24MD(6B) of the NTA to the provisions of that Part.
(2) Without limiting subclause (1), the regulations may make provision for the continuing effect of section 24MD(6B) matters, whether with or without modification, and for those matters to be treated as if they had occurred or come into existence for the purposes of Part 4.
(3) Provision may be made as mentioned in subclause (2) despite the fact that a section 24MD(6B) matter does not fully comply with a requirement of Part 4.
Notes
1 This is a compilation of the Native Title (State Provisions) Act 1999. The following table contains information about that Act 1a.
Compilation Table
|
Short title |
Number |
Assent |
Commencement |
|
Native Title (State Provisions) Act 1999 |
60 of 1999 |
10 Jan 2000 |
10 Jan 2000 (see s. 2(1)) |
1a On the date as at which this compilation was prepared, provisions referred to in the following table had not come into operation and were therefore not included in this compilation. For the text of the provisions see the endnote referred to in the table.
Provisions that have not come into operation
|
Short title |
Number and year |
Assent |
Commencement |
|
Native Title (State Provisions) Act 1999 Pt. 2 (except s. 2.2), Pt. 3 (except s. 3.1), Pt. 4-6 , s. 7.3 and Sch. 1 and 2 2 |
60 of 1999 (as amended by No. 59 of 2004 s. 141 cl. 107) |
10 Jan 2000 |
Pt. 2 (except s. 2.2), Pt. 3 (except s. 3.1) and Pt. 5 Div. 4 operative day to be determined under Commonwealth Native Title Act 1993, s. 43A (see s. 1.2(3)-(5)); |
2 On the date as at which this compilation was prepared, the Native Title (State Provisions) Act 1999 Pt. 2 (except s. 2.2), Pt. 3 (except s. 3.1) Pt. 4-6, s. 7.3 and Sch. 1 and 2 (as amended by the Courts Legislation Amendment and Repeal Act 2004 s. 141 cl. 107) had not come into operation. They read as follows:
“
Part 2 — Consultation procedures for alternative provision areas
Division 1 — Preliminary
2.1. Definitions
In this Part —
“alternative provision area” has the meaning given by section 43A(2) of the NTA except that it does not include —
(a) an area —
(i) that is covered by a grant for the benefit of Aboriginal persons; and
(ii) over which all native title rights and interests have not been extinguished; or
(b) an area that is unallocated Crown land within the meaning of the Land Administration Act 1997 and is land —
(i) over which, under a written law relating to the administration of Crown land —
(I) a non‑exclusive pastoral lease was granted that continued in force for not more than 2 years; and
(II) no other tenure has ever been granted; and
(ii) that has never been reserved under a written law referred to in subparagraph (i);
“grant for the benefit of Aboriginal persons” means —
(a) a lease granted for a fixed term or in perpetuity for the use and benefit of Aboriginal persons under —
(i) section 9 or 116 of the Land Act 1933; or
(ii) section 79 or 83 of the Land Administration Act 1997;
or
(b) a reserve under section 29 of the Land Act 1933 or section 41 of the Land Administration Act 1997 for the use and benefit of Aboriginal persons where the land concerned is used for that purpose.
2.3. Transitional provisions
The regulations may make transitional provisions, so far as the legislative power of the Parliament permits, that are necessary or expedient to be made in connection with the amendment or revocation of a determination referred to in section 2.2.
2.4. Object of this Part
The object of this Part is to make provisions that —
(a) are alternative to those contained in Part 2 Division 3 Subdivision P of the NTA in relation to acts to which that Subdivision applies that are attributable to the State; and
(b) are permitted by section 43A(1) of the NTA to have effect instead of Subdivision P while a determination referred to in section 2.2 is in force,
in relation to an area of land or waters that is an alternative provision area.
Note: Part 2 Division 3 Subdivision P of the NTA contains right to negotiate procedures in relation to some future acts. For an overview of that Subdivision, see section 25 of the NTA.
Division 2 — Relevant future acts and their validity
2.5. Acts to which this Part applies
(1) This Part applies to a future act (“a Part 2 act”) done by the State that —
(a) is referred to in —
(i) section 26(1A)(a) and (c) of the NTA; or
(ii) section 26(1)(a) and (c) of the NTA;
(b) is not referred to in section 26(2) of the NTA; and
(c) subject to subsection (3), relates to any extent to an area of land or waters that is an alternative provision area.
(2) This Part applies to an act only to the extent that the act relates to a place that is on the landward side of the mean high‑water mark of the sea.
(3) This Part does not apply to a compulsory acquisition that comes within section 26(1)(c)(iii) of the NTA if it involves the acquisition of native title rights and interests in relation to land or waters in both an alternative provision area and an area that is not an alternative provision area.
(4) If by operation of section 43B of the NTA a future act is taken to consist of 2 separate acts, this Part applies only to the separate act that comes within paragraph(c)(i) of that section.
(5) This Part does not apply to an act in respect of which a determination is made under section 2.7.
2.6. Circumstances in which act is not valid
(1) A Part 2 act is not valid to the extent that it affects native title unless, before it is done, the requirements of one of the paragraphs of subsection (2) are satisfied in respect of the act.
(2) The requirements are —
(a) no objection is lodged under section 2.16 before the close of business on the last day for the lodgment of objections;
(b) after the last day for the lodgment of objections, but immediately before the act is done, there is no —
(i) registered native title body corporate; or
(ii) registered native title claimant,
in relation to any part of the relevant land;
(c) all objections lodged under section 2.16 before the close of business on the last day for the lodgment of objections are —
(i) withdrawn under section 2.25; or
(ii) dismissed under section 2.29;
(d) an agreement of the kind described in section 2.26 is made by the consultation parties and given to the Commission under that section;
(e) a recommendation is made that the act be done, or be done subject to conditions being complied with, and the recommendation —
(i) has not been overruled under section 2.38; and
(ii) is no longer capable of being overruled —
(I) because of section 2.38(2); or
(II) because the responsible Minister has given an instrument to the Commission under section 2.44;
(f) a recommendation that the act not be done is overruled under section 2.38; or
(g) a recommendation —
(i) that the act be done; or
(ii) that the act be done subject to conditions being complied with,
is overruled under section 2.38 and a determination is made under that section that the act may be done subject to conditions being complied with.
(3) In subsection (2) —
“close of business” means the close of business of the Government party as specified in accordance with section 2.13(2)(f);
“last day for the lodgment of objections” —
(a) in relation to a person who has filed an application in terms of section 2.18(3)(a) in relation to any part of the relevant land (a “pending application”), means the day that is one month after the closing day; and
(b) in relation to any other person, or if at the closing day there is no pending application, means the closing day.
2.7. Part 3 may be applied to a Part 2 act
The Government party may, on the application of a person who has applied for, or made a request or submission for, the doing of an act that would otherwise come within section 2.5, determine that Part 2 is not to apply to the act but that it is to be treated instead as a Part 3 act.
2.8. Other statutory requirements not affected
Nothing in section 2.6, or in an agreement, recommendation or determination under this Part, authorizes the Government party to do a Part 2 act without complying with any requirements of another written law that apply to the doing of the act.
Division 3 — Notices and objections
2.9. Proponent where act relates to mining
Where the Part 2 act, if done, would —
(a) create or vary a right to mine; or
(b) renew, re‑grant, remake or extend the term of an instrument creating a right to mine,
the proponent for the purposes of this Part is the person who under the relevant written law has applied for the act to be done.
2.10. Identification of proponents in other cases
(1) This section applies where the Part 2 act is not covered by section 2.9.
(2) The Government party is to determine the person or persons (if any) who, because of an application, request or submission made by the person or persons for the act to be done, are to be treated as the proponent or proponents in relation to the act for the purposes of this Part.
(3) The Government party may amend a determination under subsection (2).
(4) The Government party must give notice in writing to each proponent of —
(a) a determination under subsection (2); and
(b) an amendment of a determination,
relating to that proponent.
(5) If there is any other consultation party in relation to the act at the time when a notice is given under subsection (4) the Government party must give the copy of the notice to each other consultation party.
2.11. Closing day for objections
(1) The Government party is to fix, for every Part 2 act, a closing day for the lodgment of objections to the doing of the act.
(2) The Government party may fix a later closing day for the lodgment of objections to the doing of a Part 2 act if the Government party is satisfied that it has not been reasonably practicable for section 2.13(1) to be complied with in respect of the act.
2.12. Notification of acts
(1) Before a Part 2 act is done, public notice of the act must be given by advertisement in a newspaper circulating generally throughout the State.
(2) Notice in writing of the act must also be given to —
(a) any registered native title body corporate in relation to any of the relevant land;
(b) any registered native title claimant in relation to any of the relevant land;
(c) any representative body for an area that includes any of the relevant land; and
(d) the Native Title Registrar.
2.13. Further provision as to notices
(1) The notices required by section 2.12 in respect of a Part 2 act must be given at least 3 months before the closing day.
(2) Every notice must show —
(a) a clear description of the land or waters to which the act relates;
(b) a description of the nature of the act;
(c) the title of the Government party who —
(i) would do the act; and
(ii) will receive objections;
(d) the address at which objections may be lodged and the postal address to which they may be sent;
(e) the closing day;
(f) the time of close of business of the Government party on the closing day;
(g) the name and address of any person who is a proponent under section 2.9 or is determined to be a proponent under section 2.10(2);
(h) how further information about the act can be obtained; and
(i) any other information that is prescribed for the purposes of section 2.15(1)(a).
(3) Every notice must also contain a statement explaining how section 2.18(3) operates to allow a person time —
(a) to become a registered native title claimant in relation to the relevant land; and
(b) by so doing to become eligible in terms of section 2.16(1)(b) to lodge an objection to the doing of the act.
(4) The particulars referred to in subsection (2)(c), (d) and (f) are to be as determined by the Government party.
2.14. Who gives notice
The notices required by section 2.12 are to be given by the Government party.
2.15. Prescribed provisions about notice
(1) The regulations may make provision about the giving of notice under this Division including about —
(a) the information that must be included in a notice; and
(b) how the requirement to give notice —
(i) may be satisfied either generally or in particular types of cases; and
(ii) may be satisfied in conjunction with the giving of notice under another written law that relates to a Part 2 act.
(2) Regulations of the kind referred to in subsection (1)(b)(ii) may be expressed to be made under section 7.1 and under powers conferred by another written law.
2.16. Right to object to doing of act
(1) A person that is, in relation to any part of the relevant land —
(a) a registered native title body corporate; or
(b) subject to subsection (3), a registered native title claimant,
may lodge an objection to the doing of a Part 2 act.
(2) An objection may be lodged only on the ground that the doing of the act in relation to the relevant land would affect the person’s registered native title rights and interests in relation to that land.
(3) Subsection (1)(b) does not apply if there are one or more registered native title bodies corporate in relation to all of the relevant land.
2.17. Requirements for objections
(1) An objection must —
(a) be lodged with the Government party in accordance with the requirements of the relevant notice;
(b) state the manner in which it is said that the doing of the act would be likely to affect the objector’s registered native title rights and interests in relation to the relevant land; and
(c) comply with any other requirements of the regulations as to the form or content of objections.
(2) The objector must give a copy of the objection to any proponent in relation to the act.
2.18. Time limit
(1) An objection against a Part 2 act cannot be lodged after the closing day.
(2) Where, on the application of a person made before the closing day, the Commission is satisfied that exceptional circumstances so require, the Commission may —
(a) fix a later closing day for the lodgment of objections to the doing of the act; and
(b) give such directions as the Commission thinks appropriate as to the giving of notice of the day so fixed.
(3) If —
(a) on or before the closing day for a Part 2 act, a person files a native title determination application under section 61 of the NTA; and
(b) within one month after the closing day the person becomes a registered native title claimant,
in relation to any part of the relevant land, the person may, despite subsection (1), lodge an objection to the doing of the act within the period referred to in paragraph (b).
(4) A person who files an application referred to in subsection (3) must, within 7 days of doing so, notify the Government party and any proponent in writing of that fact.
2.19. Government party to notify the Commission of objections
(1) The Government party must notify —
(a) the Commission; and
(b) any proponent,
of the particulars of all objections against a Part 2 act lodged on or before the closing day or in accordance with section 2.18(3).
(2) The Government party must also notify an objector of particulars of all such objections lodged by other objectors.
(3) Notification under subsection (1) or (2) of an objection must be given not later than 14 days after the lodgment of the objection.
2.20. Withdrawal of request etc. by proponent
(1) The proponent in relation to a Part 2 act may give notice in writing to —
(a) the Commission;
(b) the other consultation parties (if any); and
(c) the Government party,
that the proponent’s application, request or submission for the doing of the act is withdrawn.
(2) If there is more than one proponent a notice under subsection (1) is of no effect unless it is given by all of the proponents jointly.
(3) The giving of a notice under subsection (1) to all of the persons referred to in that subsection brings to an end any procedures that have begun under this Part.
2.21. Withdrawal of proposal by Government party
(1) The application of section 2.20 extends to cases where —
(a) section 2.9 does not apply; and
(b) a proponent has not been determined under section 2.10(2).
(2) In that event —
(a) a notice may be given by the Government party that the act will not be done; and
(b) the provisions of section 2.20 apply with all necessary changes.
Division 4 — Consultation and agreements
2.22. Meaning of “consultation parties”
References in this Part to “consultation parties” in relation to a Part 2 act are references to —
(a) each proponent under section 2.9 and each objector; or
(b) where section 2.9 does not apply —