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Contents (1983 - 42)
Aboriginal Land Rights Act 1983 No 42
Current version for 3 April 2017 to date (accessed 23 November 2017 at 22:26)
Part 2 Division 2
Division 2 Claimable Crown lands
36   Claims to Crown lands
(1)  In this section, except in so far as the context or subject-matter otherwise indicates or requires:
claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division:
(a)  are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901,
(b)  are not lawfully used or occupied,
(b1)  do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands,
(c)  are not needed, nor likely to be needed, for an essential public purpose, and
(d)  do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and
(e)  do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands).
Crown Lands Minister means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased.
(2)  The New South Wales Aboriginal Land Council may make a claim for land on its own behalf or on behalf of one or more Local Aboriginal Land Councils.
(3)  One or more Local Aboriginal Land Councils may make a claim for land within its or their area or, with the approval of the Registrar, outside its or their area.
(4)  A claim under subsection (2) or (3):
(a)  shall be in writing and, if a form for making such a claim has been prescribed, shall be in or to the effect of that form,
(b)  shall describe or specify the lands in respect of which it is made,
(b1)    (Repealed)
(c)  shall be lodged with the Registrar, who shall refer a copy thereof (together with a copy of any approval necessary under subsection (3)) to the Crown Lands Minister or, if there is more than one Crown Lands Minister, to each of them.
(4A)  The Registrar may refuse to refer a claim, or part of a claim, to the Crown Lands Minister if the Registrar is satisfied that:
(a)  the claim, or the part of the claim, relates to lands that are not vested in Her Majesty, or
(b)  the claim, or the part of the claim, has been made in contravention of an undertaking given by the claimant in an Aboriginal Land Agreement under section 36AA while such an undertaking remains in force.
(4B)  Before refusing to refer a claim, or part of a claim, to the Crown Lands Minister, the Registrar must:
(a)  inform the claimant, by notice in writing, of the Registrar’s intention to refuse to refer the claim, or the part of the claim, and the reasons for the refusal, and
(b)  invite the claimant to provide further information supporting the claim, or part of the claim, within 28 days of the giving of the notice (or such greater period as may be specified in the notice), and
(c)  consider any further information provided by the claimant within that period.
(4C)  If the Registrar has not referred a claim, or any part of a claim, to the Crown Lands Minister within 60 days after the claim was lodged with the Registrar or by the end of the period within which the claimant has been invited to provide further information supporting the claim, the Registrar is taken to have refused to refer the claim, or the part of the claim, to the Crown Lands Minister.
(4D)  An Aboriginal Land Council may appeal to the Court against a refusal to refer the claim, or any part of the claim, to the Crown Lands Minister.
(4E)  The Court is to hear and determine any appeal made to it under subsection (4D) and may order that the claim, or any part of the claim, be referred to the Crown Lands Minister if the Registrar fails to satisfy the Court that:
(a)  the claim, or the part of the claim, relates to lands that are not vested in Her Majesty, or
(b)  the claim, or the part of the claim, has been made in contravention of an undertaking given by the claimant in an Aboriginal Land Agreement under section 36AA while such an undertaking remains in force.
(5)  A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall:
(a)  if the Crown Lands Minister is satisfied that:
(i)  the whole of the lands claimed is claimable Crown lands, or
(ii)  part only of the lands claimed is claimable Crown lands,
grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or
(b)  if the Crown Lands Minister is satisfied that:
(i)  the whole of the lands claimed is not claimable Crown lands, or
(ii)  part of the lands claimed is not claimable Crown lands,
refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require.
(5AA)  The Crown Lands Minister to whom a claim for lands has been referred must not grant a claim under subsection (5) if the Crown Lands Minister is satisfied that the claimant has entered into an Aboriginal Land Agreement under section 36AA that includes an undertaking by the claimant not to lodge a claim in respect of the lands claimed or to withdraw such a claim.
(5AB)  An Aboriginal Land Council may appeal to the Court against a decision of the Crown Lands Minister under subsection (5AA).
(5AC)  The Court is to hear and determine any appeal made to it under subsection (5AB) and may order the Crown Lands Minister to determine the claim if the Crown Lands Minister fails to satisfy the Court that the claimant has entered into an Aboriginal Land Agreement under section 36AA that includes an undertaking by the claimant not to lodge a claim in respect of the lands claimed or to withdraw such a claim.
(5A)  Where, under subsection (5), a Crown Lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown Lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition.
(6)  An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5) (b) of a claim made by it.
(7)  The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.
(8)  A certificate being:
(a)  a certificate issued by a Crown Lands Minister stating that any land the subject of a claim under this section and specified in the certificate is needed or is likely to be needed as residential land, or
(b)  a certificate issued by a Crown Lands Minister, after consultation with the Minister administering this Act, stating that any land the subject of a claim under this section and specified in the certificate is needed or likely to be needed for an essential public purpose,
shall be accepted as final and conclusive evidence of the matters set out in the certificate and shall not be called into question in any proceedings nor liable to appeal or review on any grounds whatever.
(9)  Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.
(9A)  Where the transfer of lands to an Aboriginal Land Council under this section is of land to which the Western Lands Act 1901 applies but which is not within an area determined by the Minister administering that Act as being the urban area of a city, town or village, the transfer shall be effected by the granting to the Council of a lease in perpetuity under that Act but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.
(9B)  A lease referred to in subsection (9A):
(a)  may be granted without the necessity for the payment of any rent under the lease or may require the payment of a nominal rent, and
(b)  notwithstanding the Western Lands Act 1901, shall not be cancelled unless the Minister administering that Act has consulted with the Minister administering this Act.
(9C)  Land transferred under this section to 2 or more Aboriginal Land Councils may be transferred to those Councils as joint tenants or as tenants in common.
(10)  A transfer of lands pursuant to this section operates to revoke any dedication or reservation under the Crown Lands Consolidation Act 1913 to which the lands were subject immediately before the transfer.
(11)  Where, by reason of the existence of a forestry right (within the meaning of section 87A of the Conveyancing Act 1919) granted in respect of them or of an easement over them, any lands claimed under this section could not, but for this subsection, be regarded by a Crown Lands Minister as claimable Crown lands, the Crown Lands Minister may, for the purposes of this section, treat the lands as claimable Crown lands.
(12)  A transfer of lands pursuant to this section is subject to the following:
(a)  any easements affecting the lands immediately before the transfer,
(b)  any condition imposed under subsection (5A),
(c)  any forestry right within the meaning of section 87A of the Conveyancing Act 1919, and any restriction on use or covenant imposed under Division 4 of Part 6 of that Act in connection with that forestry right, in force in respect of the lands immediately before the transfer.
(13)  Where the transfer of lands in accordance with this section would not, but for this subsection, be authorised by the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901, the transfer of the lands in accordance with this section shall be deemed to have been authorised by whichever of those Acts the lands were subject to immediately before the transfer.
(14)  The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may request a Crown Lands Minister to supply or cause to be supplied to it such information in relation to the Crown land or dealings in Crown land as is specified in the request and the Crown Lands Minister shall, so far as is reasonably practicable, comply with that request.
(15)  Duty under the Duties Act 1997 is not payable in respect of a transfer of lands in accordance with this section.
(16)  The definition of claimable Crown lands in subsection (1) is taken to include land vested in the State Property Authority that complies with paragraphs (a)–(e) of that definition and that was, immediately before it vested in that Authority, claimable Crown lands within the meaning of that definition.
(17)  The provisions of this section are modified as follows in relation to its application to land vested in the State Property Authority:
(a)  subsection (4) (c) requires the Registrar to refer a copy of a claim in relation to the land to the Minister administering the State Property Authority Act 2006 in addition to the other Ministers referred to in that paragraph,
(b)  a reference in subsection (5) to the Crown Lands Minister granting a claim by making a transfer referred to in that subsection is to be read as the Crown Lands Minister granting a claim and requiring the State Property Authority to transfer the relevant land as referred to in that subsection,
(c)  a reference in subsection (14) to a Crown Lands Minister is to be read as a reference to the State Property Authority,
(d)  a reference in subsection (14) to Crown land is a reference to land vested in the State Property Authority that, immediately before it was vested in that Authority, was Crown land.
(18)  In accordance with a requirement by a Crown Lands Minister under subsection (5) (as modified by subsection (17) (b)), the State Property Authority is to transfer land vested in it in relation to which a claim has been granted by that Minister, subject to the taking of any action required to implement a condition imposed under subsection (5A) on the grant of the claim.
36AA   Aboriginal Land Agreements
(1)  In this section, Aboriginal Land Agreement means an agreement, in writing, between the Crown Lands Minister and one or more Aboriginal Land Councils (whether or not the agreement also includes other parties) that, in addition to any other matter that may be included in the agreement, makes provision for:
(a)  the exchange, transfer or lease of land to an Aboriginal Land Council, or
(b)  an undertaking by an Aboriginal Land Council not to lodge a claim, or to withdraw a claim, in relation to specified land.
(2)  An Aboriginal Land Council and the Crown Lands Minister may, at any time by notice in writing, commence negotiation, in good faith and in a manner agreed between the parties, for an Aboriginal Land Agreement whether or not a claim has been made under section 36 by the Council in relation to the land that is the subject of the proposed agreement.
(3)  The Aboriginal Land Council or the Crown Lands Minister may, with the approval of the other party, invite one or more other Aboriginal Land Councils, or any other person, to join the negotiations and enter into the Aboriginal Land Agreement.
(4)  An Aboriginal Land Council, the Crown Lands Minister or any other party may, at any time before the making of an Aboriginal Land Agreement, withdraw from negotiation for the agreement by notice in writing to the other party or parties.
(5)  Without limiting the matters that may be included in an Aboriginal Land Agreement, such an agreement may make provision for or with respect to the following:
(a)  financial or other consideration,
(b)  exchange, transfer or lease of land,
(c)  conditions or restrictions on the use of any land to which the agreement relates,
(d)  joint access to and management of land (including a lease of a type referred to in section 36A),
(e)  undertakings by an Aboriginal Land Council or the Crown Lands Minister with regard to the lease, transfer, management or use of any land,
(f)  the duration of the agreement,
(g)  the resolution of disputes arising under the agreement.
(6)  The Crown Lands Minister may enter into an Aboriginal Land Agreement whether or not a claim has been made under section 36 in relation to any lands to which the agreement relates.
(7)  If a proposed Aboriginal Land Agreement provides for the transfer or lease of lands for which a Minister other than the Crown Lands Minister is responsible, the concurrence of that other Minister is required before the agreement is made.
(8)  The provisions of section 36 (9)–(13), (15) and (17) apply (with necessary modifications) to the transfer of lands in accordance with an Aboriginal Land Agreement in the same way as those provisions apply to the transfer of lands under that section.
(9)  An Aboriginal Land Council or the Crown Lands Minister may, at any time during the negotiation for an Aboriginal Land Agreement, notify the other party, in writing, that the agreement must not make provision with respect to specified lands.
(10)  The Crown Lands Minister is, on the making of an Aboriginal Land Agreement, authorised to transfer or lease Crown lands the subject of the agreement in accordance with the agreement.
(11)  If an Aboriginal Land Agreement provides for termination or transfer of an interest in land, other than an interest of the Crown, the transfer or termination may only be effected with the approval of the holder of the interest.
(12)  The Registrar is to keep and maintain a register in relation to Aboriginal Land Agreements made under this section.
(13)  The register required to be kept under this section is, subject to the regulations, to include such information and to be in such form as is determined by the Registrar.
(14)  The provisions of the Crown Lands Act 1989 that provide for the transfer of Crown lands do not apply in respect of the transfer of land carried out in accordance with an Aboriginal Land Agreement.
(15)  In this section:
Crown Lands Minister has the same meaning as in section 36.
interest in land includes:
(a)  a legal or equitable interest in the land, or
(b)  an easement, right, charge, power or privilege over, or in connection with, the land.
36A   Special provision concerning certain Crown lands having nature conservation value
(1)  This section applies in relation to lands that:
(a)  are the subject of a claim by one or more Aboriginal Land Councils under section 36, and
(b)  the Crown Lands Minister is satisfied would be claimable Crown lands except for the fact that the lands are needed, or likely to be needed, for the essential public purpose of nature conservation.
(2)  If the Aboriginal Land Council or Councils making the claim agree to the imposition of the conditions that, before the grant of a claim to lands to which this section applies, the Aboriginal Land Council or Councils:
(a)  must negotiate a lease of the lands, that complies with the requirements of Part 4A of the NPW Act, with the Minister administering that Act, and
(b)  must agree:
(i)  to enter into a lease of the lands to the Minister administering the NPW Act in the terms negotiated in accordance with paragraph (a), and
(ii)  to the simultaneous reservation or dedication of the lands under the NPW Act, and
(iii)  to hold the lands as lands reserved or dedicated under the NPW Act, and
(iv)  to comply with the requirements of the NPW Act and, in particular, the requirements of Part 4A of that Act in relation to the lands,
the Crown Lands Minister may, despite section 36 (5) (b), grant a claim to lands to which this section applies.
Note.
 Part 4A of the NPW Act deals with lands, reserved or dedicated under that Act, that are vested in an Aboriginal Land Council or Councils and are leased by that Council or those Councils to the Minister administering that Act.
(3)  The Crown Lands Minister must not grant a claim to lands to which this section applies unless the Minister administering the NPW Act:
(a)  has agreed to the reservation or dedication of the lands under Division 4 of Part 4A of that Act, and
(b)  has notified the Crown Lands Minister in writing that a lease, negotiated in pursuance of subsection (2) with the Aboriginal Land Council or Councils concerned, is acceptable to the Minister and has been executed in escrow by the proposed parties to it.
Note.
 Division 4 of Part 4A of the NPW Act deals with the reservation or dedication and leasing under that Act of lands to which section 36A applies that have been granted by the Crown Lands Minister to an Aboriginal Land Council or Councils under this Act.
(4)  If a claim by one or more Aboriginal Land Councils relates partly to lands to which this section applies and partly to other lands, nothing in this section prevents the Crown Lands Minister from granting the claim:
(a)  as to so much of the lands to which this section applies—subject to and in accordance with this section, and
(b)  as to the balance of the lands—in accordance with the other provisions of this Part.
(5)  This section does not limit section 36 and the provisions of that section (in so far as they are applicable) apply to the lands to which this section applies, and to their transfer.
(6)  Parts 3 and 4 do not apply to lands to which this section applies on and from the date of their reservation or dedication under the NPW Act.
(7)  In this section, claimable Crown lands and Crown Lands Minister have the same meanings as in section 36.
36B   Special provisions relating to Crown lands subject of land claim
(1)  Despite anything to the contrary in the Crown Lands Act 1989, if an Aboriginal Land Council has appealed to the Court against a refusal of a land claim made by it in relation to any land, the Crown Lands Minister must not, by any act or omission, cause anything to occur in relation to that land that would cause a claim (if any) lodged in relation to that land before the final determination of the appeal to be unsuccessful.
(2)  Subsection (1) does not prohibit the extension or continuance of an existing lawful use of the land to which the claim relates or anything done with the consent of the relevant Aboriginal Land Council.
(3)  If an Aboriginal Land Council has appealed to the Court against the refusal of a land claim or part of a land claim, a land claim may not be made in relation to the land the subject of the appeal until the final determination of the appeal.
37   Aboriginal lands in travelling stock reserves
(1)  Where a claim by an Aboriginal Land Council is lodged under section 36 in respect of land which is or is part of a travelling stock reserve within the meaning of the Local Land Services Act 2013 (not being a travelling stock reserve in the Western Division within the meaning of the Crown Lands Act 1989), the Registrar shall, in addition to complying with section 36 (4) (c), refer a copy of the claim to Local Land Services.
(2)  This section has effect notwithstanding the provisions of the Local Land Services Act 2013 or Crown Lands Act 1989.
(3)  Subject to subsection (4), the Crown Lands Minister within the meaning of section 36 may, in respect of the land referred to in subsection (1), enter into an agreement with the claimant Aboriginal Land Council so referred to, so as to achieve the following purposes:
(a)  the vesting of the freehold title to that land, subject to any existing easements, in the claimant Aboriginal Land Council,
(b)  the leasing in perpetuity of that land to Her Majesty at a nominal rent,
(c)  the preparation of a plan of management in respect of that land giving the claimant Aboriginal Land Council or Aboriginal persons defined rights, or conferring or imposing on the claimant Aboriginal Land Council or on Aboriginal persons defined functions, in respect of that land.
(4)  The Minister referred to in subsection (3) shall not enter into an agreement under that subsection in respect of land unless the Minister is satisfied that Aboriginal persons have traditional rights to the land or that Aboriginal persons have had a long association with the land.
(4A)  The Minister referred to in subsection (3) shall not enter into an agreement under that subsection in respect of land which is or is part of a travelling stock reserve within the meaning of the Local Land Services Act 2013 without the approval of the Minister administering that Act.
(5)  For the purposes of giving effect to an agreement referred to in subsection (3):
(a)  the Minister so referred to may, by notification published in the Gazette, vest the freehold title to land, subject to any existing easements, in the claimant Aboriginal Land Council and that notification shall have effect according to its tenor, and
(b)  the Minister so referred to and the claimant Aboriginal Land Council may execute any necessary instruments.
(6)  Subject to any plan of management prepared as referred to in subsection (3) in respect of the land, the vesting of the freehold title to any land in an Aboriginal Land Council, and the holding of the land under perpetual lease by Her Majesty, under this section shall not affect:
(a)  the application of the provisions of the Local Land Services Act 2013, or regulations under that Act, to the land, or
(b)  the status of the land for the purposes of any other law, other than a law relating to the registration of titles.
(7)  There shall be no appeal against, or review of, a decision of the Minister referred to in subsection (3) not to enter into an agreement under this section.
(8)  Duty under the Duties Act 1997 is not payable in respect of an agreement or other instrument executed for the purposes of this section.