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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia LEGISLATIVE ASSEMBLY (As amended in Committee) Titles Validation Amendment Bill 1998 A Bill for An Act to amend the Titles Validation Act 1995. The Parliament of Western Australia enacts as follows: 1. Short Title This Act may be cited as the Titles Validation Amendment Act 1998. page 1 28 -- 2 Titles Validation Amendment Bill 1998 s. 2 2. Commencement This Act comes into operation on the day on which it receives the Royal Assent. 3. The Act amended 5 The amendments in this Act are to the Titles Validation Act 1995*. [* Act No. 16 of 1995.] Note: The definitions in the Native Title Act 1993 of the Commonwealth ("the NTA") apply also in the Titles Validation Act 1995 (see section 4(2) of the latter). There is attached to 10 this Act a list of the words and expressions that are defined in the NTA and used in the provisions inserted in the principal Act by this Act. The list shows where in the NTA each definition can be found. 4. Long title replaced The long title is repealed and the following long title is inserted 15 instead -- " An Act to make provision in relation to native title as permitted by the Native Title Act 1993 of the Commonwealth, namely -- 20 • under sections 19 and 22F of that Act, to validate past acts and intermediate period acts attributable to the State and to provide for the effects of the validation; • under sections 23E and 23I of that Act, to confirm 25 the effect on native title of acts attributable to the State done on or before 23 December 1996; and • under section 212 of that Act, to confirm certain rights relating to natural resources and public access. 30 ". page 2 Titles Validation Amendment Bill 1998 s. 5 5. Section 1 amended Section 1 is amended by deleting "Validation" and inserting instead -- " (Validation) and Native Title (Effect of Past Acts) ". 5 6. Section 12 amended Section 12(1) is amended by deleting "Native" and inserting instead -- " Under section 20 of the NTA native ". 7. Parts 2A, 2B and 2C inserted 10 After Part 2 the following Parts are inserted -- " Part 2A -- Validation of intermediate period acts 12A. Validation of intermediate period acts attributable 15 to the State (s. 22F NTA) Every intermediate period act attributable to the State is valid and is taken always to have been valid. Notes: The expression "intermediate period act" is defined in section 232A of the NTA as an act that took place between 1 January 1994 and 20 23 December 1996 and that meets the various conditions set out in that section. Under section 22H of the NTA the State must within 6 months of the commencement of this Act notify specified details relating to certain acts to the public and to native title bodies and claimants in relation to the affected 25 land or waters. The details relate to mining rights granted between 1 January 1994 and 23 December 1996 in respect of land and waters that are or were the subject of a freehold or leasehold grant or public work. page 3 Titles Validation Amendment Bill 1998 s. 7 12B. Effect of validation -- category A intermediate period acts consisting of grant of freehold and certain leases or vesting of land or waters (ss. 22F & 22B(a) NTA) 5 (1) A category A intermediate period act to which section 232B(2), (3) or (4) of the NTA applies extinguishes all native title in relation to the land or waters concerned. (2) Subsection (1) has effect subject to section 24EBA(6) 10 of the NTA. Notes: The expression "category A intermediate period act" is defined in section 232B of the NTA to mean (subject to that section) -- • the grant or vesting of a freehold; • the grant or vesting of a Scheduled interest; 15 • the grant or vesting of certain leaseholds (commercial leases, exclusive agricultural leases, exclusive pastoral leases, residential leases, community purposes leases, other leases (other than mining leases) that confer a right of exclusive possession, and in certain circumstances mining leases so far as they apply to certain developed 20 land); and • the construction or establishment of a public work (see section 12C of this Act). This section does not apply to an act if section 12I of this Act applies to it. The effect of this section can be changed by an agreement that complies with 25 section 24EBA of the NTA (see subsections (1)(a)(iii) and (6) of that section). 12C. Effect of validation -- category A intermediate period acts involving public works (ss. 22F & 22B(b) NTA) (1) A category A intermediate period act to which 30 section 232B(7) of the NTA applies extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated. page 4 Titles Validation Amendment Bill 1998 s. 7 (2) The extinguishment is taken to have happened when the construction or establishment began. (3) Subsection (1) has effect subject to section 24EBA(6) of the NTA. 5 Note: This section does not apply to an act if section 12J of this Act applies to it. The effect of this section can be changed by an agreement that complies with section 24EBA of the NTA (see subsections (1)(a)(iii) and (6) of that section). 12D. Effect of validation -- inconsistent category B intermediate period acts (ss. 22F & 22B(c) NTA) 10 (1) A category B intermediate period act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned, extinguishes the native title to the extent of the inconsistency. 15 (2) Subsection (1) has effect subject to section 24EBA(6) of the NTA. Notes: The expression "category B intermediate period act" is defined in section 232C of the NTA as the grant of a lease that is not a category A intermediate period act; but the definition does not include -- 20 • mining leases; and • certain leases for the benefit of Aboriginal peoples and subleases derived from such leases. This section does not apply to an act if section 12I or 12M of this Act applies to it. 25 The effect of this section can be changed by an agreement that complies with section 24EBA of the NTA (see subsections (1)(a)(iii) and (6) of that section). 12E. Effect of validation -- category C and category D intermediate period acts (ss. 22F & 22B(d) NTA) (1) The non-extinguishment principle applies to all 30 category C and category D intermediate period acts. page 5 Titles Validation Amendment Bill 1998 s. 7 (2) Subsection (1) has effect subject to section 24EBA(6) of the NTA. Notes: The expression "category C intermediate period act" is defined in section 232D of the NTA as the grant of a mining lease; and the expression 5 "category D intermediate period act" is defined in section 232E of that Act as an intermediate period act that is not in category A, B or C. This section does not apply to an act if section 12M of this Act applies to it. The effect of this section can be changed by an agreement that complies with section 24EBA of the NTA (see subsections (1)(a)(iii) and (6) of that section). 10 12F. Preservation of beneficial reservations and conditions (ss. 22F & 22C NTA) If -- (a) an intermediate period act attributable to the State contains a reservation or condition for the 15 benefit of Aboriginal peoples; or (b) the doing of an intermediate period act attributable to the State would affect rights or interests (other than native title rights and interests) of Aboriginal peoples (whether 20 arising under legislation, at common law or in equity and whether or not rights of usage), nothing in section 12B, 12C, 12D or 12E affects that reservation or condition or those rights or interests. 12G. Compensation 25 (1) Under section 22G of the NTA native title holders are entitled to compensation because of the validation by this Act of an intermediate period act attributable to the State. (2) The compensation is payable by the State. page 6 Titles Validation Amendment Bill 1998 s. 7 (3) Compensation is to be determined in accordance with the principles contained in Division 5 of Part 2 of the NTA. 12H. Requirement to notify: tenures and reserves under 5 the Land Act 1933 (1) This section applies to an intermediate period act attributable to the State -- (a) consisting of -- (i) the grant of a fee simple; 10 (ii) the grant of a lease, licence or easement; or (iii) the creation, vesting or amendment of a reserve, under the Land Act 1933; and 15 (b) that took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996. (2) The State must, before the end of 6 months after the commencement of the Titles Validation Amendment 20 Act 1998, give notice containing the details set out in subsection (3) in respect of each act to which this section applies to any -- (a) registered native title body corporate; (b) registered native title claimant; and 25 (c) representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act. page 7 Titles Validation Amendment Bill 1998 s. 7 (3) The details are -- (a) the date on which the act was done; (b) sufficient information to enable the area affected by the act to be identified; and 5 (c) information about the way in which further details about the act may be obtained. Part 2B -- Confirmation of past extinguishment of native title by certain valid or validated acts 12I. Confirmation of extinguishment of native title by 10 previous exclusive possession acts of State, other than public works (ss. 23E & 23C(1) NTA) (1) If an act is a previous exclusive possession act under section 23B(2) of the NTA (including because of section 23B(3)) and is attributable to the State -- 15 (a) the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned; and (b) the extinguishment is taken to have happened 20 when the act was done. (2) If this section applies to the act, sections 6, 8 and 12B do not apply to the act. Note: Under section 23B(2) and (3) of the NTA, the estates and interests to which this section applies are those validly granted or vested on or before 25 23 December 1996 and consisting of -- • a Scheduled interest; • a freehold estate (including what is taken by section 23B(3) to be a freehold estate); and page 8 Titles Validation Amendment Bill 1998 s. 7 • certain leaseholds (commercial leases, exclusive agricultural and pastoral leases, residential leases, community purpose leases, other leases (other than mining leases) that confer a right of exclusive possession, and in certain circumstances mining leases so far as they 5 apply to certain developed land). 12J. Confirmation of extinguishment of native title by previous exclusive possession acts of State consisting of public works (ss. 23E & 23C(2) NTA) (1) If an act is a previous exclusive possession act under 10 section 23B(7) of the NTA (which deals with public works) and is attributable to the State -- (a) the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or 15 establishment) was or is situated; and (b) the extinguishment is taken to have happened when the construction or establishment of the public work began. (2) If this section applies to the act, sections 7 and 12C do 20 not apply to the act. Note: Under section 23B(7) of the NTA, the public works to which this section applies are those validly undertaken and commenced to be constructed or established on or before 23 December 1996. 12K. Preservation of beneficial reservations and 25 conditions (ss. 23E & 23D NTA) If -- (a) a previous exclusive possession act attributable to the State contains a reservation or condition for the benefit of Aboriginal peoples; or page 9 Titles Validation Amendment Bill 1998 s. 7 (b) the doing of a previous exclusive possession act attributable to the State would affect rights or interests (other than native title rights and interests) of Aboriginal peoples (whether 5 arising under legislation, at common law or in equity and whether or not rights of usage), nothing in section 12I or 12J affects that reservation or condition or those rights or interests. 12L. Confirmation of validity of use of certain land held 10 by Crown etc. (ss. 23E & 23DA NTA) To avoid doubt, if an act is a previous exclusive possession act because of paragraph (b) of section 23B(9C) of the NTA (which deals with grants to the Crown etc.), the use of the land or waters 15 concerned as mentioned in that paragraph is valid. 12M. Confirmation of partial extinguishment of native title by previous non-exclusive possession acts of State (ss. 23I & 23G NTA) (1) Subject to subsection (2), if a previous non-exclusive 20 possession act (see section 23F of the NTA) is attributable to the State -- (a) to the extent that the act involves the grant of rights and interests that are not inconsistent with native title rights and interests in relation 25 to the land or waters covered by the lease concerned, the rights and interests granted, and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them; page 10 Titles Validation Amendment Bill 1998 s. 7 (b) to the extent that the act involves the grant of rights and interests that are inconsistent with native title rights and interests in relation to the land or waters covered by the lease 5 concerned -- (i) if, apart from this Act, the act extinguishes the native title rights and interests, the native title rights and interests are extinguished; and 10 (ii) in any other case, the native title rights and interests are suspended while the lease concerned, or the lease as renewed, re-made, re-granted or extended, is in force; 15 and (c) any extinguishment under this subsection is taken to have happened when the act was done. (2) If the act is the grant of a pastoral lease or an agricultural lease to which section 6 applies, this 20 section does not apply to the act. (3) If this section applies to the act, sections 6, 8, 9, 12D and 12E do not apply to the act. Note: Under section 23F of the NTA, the estates and interests to which this section applies are those arising from -- 25 • non-exclusive agricultural leases and non-exclusive pastoral leases validly granted on or before 23 December 1996; • legally enforceable rights to the grant of such leases created on or before that date but exercised after that date; and • arrangements for the grant of such leases completed after that date but 30 made on or before that date in good faith and evidenced in writing. page 11 Titles Validation Amendment Bill 1998 s. 7 12N. Preservation of beneficial reservations and conditions (ss. 23I & 23H NTA) If -- (a) a previous non-exclusive possession act 5 attributable to the State contains a reservation or condition for the benefit of Aboriginal peoples; or (b) the doing of a previous non-exclusive possession act attributable to the State would 10 affect rights or interests (other than native title rights and interests) of Aboriginal peoples (whether arising under legislation, at common law or in equity and whether or not rights of usage), 15 nothing in section 12M affects that reservation or condition or those rights or interests. 12O. Notification (ss. 23I & 23HA NTA) In the case of a previous non-exclusive possession act to which section 23F(3)(c)(ii) of the NTA applies -- 20 (a) notice must be given, in the way determined in writing by the Commonwealth Minister, to any -- (i) representative Aboriginal/Torres Strait Islander bodies; 25 (ii) registered native title bodies corporate; and (iii) registered native title claimants, page 12 Titles Validation Amendment Bill 1998 s. 7 in relation to the land or waters that will be affected by the act, about the doing or proposed doing of the act, or acts of that class, in relation to the land or waters concerned; and 5 (b) they must be given an opportunity to comment on the act or class of acts. Note: The acts to which section 23F(3)(c)(ii) of the NTA applies are those giving effect after 23 December 1996 to arrangements made on or before that date in good faith, and evidenced in writing, for the grant of non-exclusive 10 agricultural leases or non-exclusive pastoral leases. 12P. Compensation (1) Under section 23J of the NTA native title holders are entitled to compensation for any extinguishment under this Part of their native title rights and interests by an 15 act, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act. (2) The compensation is payable by the State. (3) Compensation is to be determined in accordance with 20 the principles contained in Division 5 of Part 2 of the NTA. page 13 Titles Validation Amendment Bill 1998 s. 7 Part 2C -- Validation of future acts by agreement 12Q. How future acts of State may be validated by agreement 5 Section 12R applies if -- (a) details are on the Register of Indigenous Land Use Agreements of an agreement that includes a statement to the effect that the parties agree to -- 10 (i) the validating of a particular future act (other than an intermediate period act), or of future acts (other than intermediate period acts) included in classes, that have already been done invalidly; or 15 (ii) the validating, subject to conditions, of a particular future act (other than an intermediate period act), or of future acts (other than intermediate period acts) included in classes, that have 20 already been done invalidly; (b) the future act or class of acts is attributable to the State; (c) the State is a party to the agreement; and (d) where, whether under the agreement or 25 otherwise, a person other than the Crown in right of the Commonwealth or the State, is or may become liable to pay compensation in relation to the act or class of acts, that person is a party to the agreement. page 14 Titles Validation Amendment Bill 1998 s. 8 12R. Validation If the requirements of section 12Q are satisfied in respect of a future act or class of future acts -- (a) the act is valid and is taken always to have been 5 valid; or (b) all acts included in the class are valid and are taken always to have been valid, as the case may require. Note: If an invalid future act is validated by section 12R -- 10 • under section 24EBA(4) of the NTA, the non-extinguishment principle applies unless the act is the surrender of native title and the agreement includes a statement to the effect that the surrender is intended to extinguish native title; and • under section 24EBA(5) of the NTA, the compensation entitlements 15 are determined in accordance with subsection (4), (5) or (6) and subsection (7) of section 24EB of the NTA. ". 8. Section 14 amended After section 14(d), the following paragraph is inserted -- 20 " (da) stock routes; ". page 15 Titles Validation Amendment Bill 1998 s. 8 List of defined words and expressions This is a list of words and expressions used in the provisions inserted in the principal Act by this Act (including in the notes) and defined in the Native Title Act 1993 of the Commonwealth. Column 2 indicates the section of that Act in which each definition can be found. The list is not part of this Act. 1. Word or expression 2. NTA section Aboriginal peoples ............................................................................................................. 253 act ....................................................................................................................................... 226 agricultural lease ................................................................................................................ 247 attributable ......................................................................................................................... 239 category A intermediate period act ................................................................................. 232B category B intermediate period act .................................................................................. 232C category C intermediate period act .................................................................................. 232D category D intermediate period act ................................................................................. 232E commercial lease ................................................................................................................ 246 Commonwealth Minister ................................................................................................... 253 community purposes lease .............................................................................................. 249A exclusive agricultural lease ............................................................................................. 247A exclusive pastoral lease ................................................................................................... 248A extinguish ........................................................................................................................ 237A future act ............................................................................................................................ 233 intermediate period act .................................................................................................... 232A land .................................................................................................................................... 253 land or waters on which a public work is constructed, established or situated ............... 251D lease ................................................................................................................................... 242 mining lease ....................................................................................................................... 245 native title .......................................................................................................................... 223 native title rights and interests ........................................................................................... 223 native title holder ............................................................................................................... 224 non-extinguishment principle ............................................................................................ 238 past act ............................................................................................................................... 228 pastoral lease ...................................................................................................................... 248 previous exclusive possession act ..................................................................................... 23B previous non-exclusive possession act .............................................................................. 23F public work ........................................................................................................................ 253 representative Aboriginal/Torres Strait Islander body ....................................................... 253 Register of Indigenous Land Use Agreements ................................................................... 253 registered native title body corporate ................................................................................. 253 registered native title claimant ........................................................................................... 253 residential lease .................................................................................................................. 249 Scheduled interest ........................................................................................................... 249C valid ................................................................................................................................... 253 waters ................................................................................................................................. 253
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