Part 2 Validation and its effects
The objects of this Part are:(a) to validate, in accordance with section 19 (State/Territory acts may be validated) of the Commonwealth Native Title Act, past acts attributable to the State, and(b) to validate, in accordance with section 22F of the Commonwealth Native Title Act, intermediate period acts attributable to the State, and(c) to provide for the effects of any such validation.Note. An act is defined in sec 226 NTA.A past act is defined in sec 228 NTA.
An intermediate period act is defined in sec 232A NTA (being certain acts that took place between 1 January 1994 and 23 December 1996).
An act attributable to the State is defined in sec 239 NTA.
8 Validation of past acts attributable to the State
(NTA, sec 19)
Every past act attributable to the State is valid, and is taken always to have been valid.
8A Validation of intermediate period acts attributable to the State
(NTA, sec 22F)
Every intermediate period act attributable to the State is valid, and is taken always to have been valid.
9 Application of remaining provisions of this Part
(1) The remaining provisions of this Part apply:(a) to a past act attributable to the State that is validated by section 8, and(b) to an intermediate period act attributable to the State that is validated by section 8A.(2), (3) (Repealed)
Division 2 Effect of validation of past acts on native title
9A Application of this Division
This Division applies to a past act attributable to the State that is validated by section 8.
10 Category A past acts that are not public works
(NTA, secs 19 and 15 (1) (a))
(1) This section applies if the past act is a category A past act other than a category A past act to which section 229 (4) (which deals with public works) of the Commonwealth Native Title Act applies.(2) The past act extinguishes native title.Note. Category A past act is defined in sec 229 NTA. This category covers freehold grants, some leasehold grants (commercial, agricultural, pastoral and residential leases and those parts of certain mining leases (such as lands on which there are city, town or private residences) that are taken to be “dissected” in accordance with sec 245 NTA) and public works. Lease, permit and various types of leases are defined in secs 242 to 249 NTA. Public work is defined in sec 253 NTA.
11 Category A past acts that are public works
(NTA, secs 19 and 15 (1) (b))
(1) This section applies if the past act is a category A past act to which section 229 (4) of the Commonwealth Native Title Act applies.(2) The past act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated.(3) If section 229 (4) (a) (which deals with public works completed after 1 January 1994) of the Commonwealth Native Title Act applies to the past act, the extinguishment is taken to have happened on 1 January 1994.
12 Inconsistent category B past acts
(NTA, secs 19 and 15 (1) (c))
(1) This section applies if the past act is a category B past act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned.(2) The past act extinguishes the native title to the extent of the inconsistency.Note. Category B past act is defined in sec 230 NTA. This category covers leasehold grants (other than leases that are category A past acts and mining leases).
(NTA, secs 19 and 15 (1) (d))
(1) This section applies if the past act is a category C past act or a category D past act.(2) The non-extinguishment principle applies to the past act.Note. Category C past act is defined in sec 231 NTA. This category deals with the grant of mining leases. Mining lease is defined in sec 245 NTA and mine in sec 253 NTA.Category D past act is defined in sec 232 NTA. It is the residual category of past acts.
The effect of the non-extinguishment principle is set out in sec 238 NTA.
14 Extinguishment does not confer right to eject or remove Aboriginal peoples
(NTA, secs 15 (2) and 19)
An extinguishment of native title effected by this Part does not by itself confer a right to eject or remove any Aboriginal peoples who reside on or who exercise access over land or waters covered by a pastoral lease the grant, re-grant or extension of which is validated by section 8 (Validation of past acts attributable to the State).Note. Section 20 NTA provides native title holders with an entitlement to compensation from the State in respect of past acts attributable to the State.
Division 2A Effect of validation of intermediate period acts on native title
14A Application of this Division
This Division applies to an intermediate period act attributable to the State that is validated by section 8A.
14B Category A intermediate period acts dealing with the granting or vesting of certain interests in land or waters
(NTA, secs 22F and 22B (a))
(1) This section applies to a category A intermediate period act to which section 232B (2), (3) or (4) (which deals with things such as the grant or vesting of freehold estates and certain leases) of the Commonwealth Native Title Act applies.(2) The intermediate period act extinguishes all native title in relation to the land or waters concerned.
14C Category A intermediate period acts that are public works
(NTA, secs 22F and 22B (b))
(1) This section applies to a category A intermediate period act to which section 232B (7) (which deals with public works) of the Commonwealth Native Title Act applies.(2) The intermediate period act extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated.(3) The extinguishment is taken to have happened when the construction or establishment began.
14D Category B intermediate period acts
(1) This section applies to 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.(2) The intermediate period act extinguishes the native title to the extent of the inconsistency.Note. Category B intermediate period acts are defined in sec 232C NTA.
14E Category C and D intermediate period acts
(1) This section applies to a category C intermediate period act or a category D intermediate period act.(2) The non-extinguishment principle applies to the intermediate period act.Note. Category C intermediate period acts are defined in sec 232D NTA and category D intermediate period acts are defined in sec 232E NTA.
14F This Division is subject to registered indigenous land use agreements
Sections 14B–14E apply subject to section 31.Note. Section 22G NTA provides native title holders with an entitlement to compensation from the State in respect of the validation of intermediate period acts attributable to the State.
Division 3 Other effects of validation
15 Preservation of beneficial reservations and conditions—past acts
(NTA, secs 19 and 16)
(1) This section applies if:(a) the past act contains a reservation or condition for the benefit of Aboriginal peoples, or(b) the doing of the past act would 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).(2) Division 2 (Effect of validation of past acts on native title) does not affect a reservation or condition or rights or interests mentioned in this section.
15A Preservation of beneficial reservations and conditions—intermediate period acts
(NTA, secs 22F and 22C)
(1) This section applies if:(a) an intermediate period act attributable to the State contains a reservation or condition for the 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 arising under legislation, at common law or in equity and whether or not rights of usage).(2) Division 2A (Effect of validation of intermediate period acts on native title) does not affect a reservation or condition or rights or interests mentioned in this section.