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Contents (1983 - 42)
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Aboriginal Land Rights Act 1983 No 42
Current version for 3 April 2017 to date (accessed 20 September 2017 at 11:59)
Part 2 Division 4
Division 4 Land dealings by Aboriginal Land Councils
40   Interpretation
(1)  In this Division and Division 4A:
agreement includes an arrangement.
deal with land means:
(a)  sell, exchange, lease, mortgage, dispose of, or otherwise create or pass a legal or equitable interest in, land, or
(b)  grant an easement or covenant over land or release an easement or covenant benefiting land, or
(c)  enter into a biobanking agreement relating to land under the Threatened Species Conservation Act 1995 or a conservation agreement under the NPW Act, or
(d)  enter into a wilderness protection agreement relating to land under the Wilderness Act 1987, or
(e)  enter into a property vegetation plan under the Native Vegetation Act 2003, or
(f)  subdivide or consolidate land so as to affect, or consent to a plan of subdivision or consolidation of land that affects, the interests of an Aboriginal Land Council in that land, or
(g)  make a development application in relation to land, or
(h)  any other action (including executing an instrument) relating to land that is prescribed by the regulations.
Note.
 In this Act, a reference to land includes any estate or interest in land, whether legal or equitable (see section 4 (1)).
dealing approval certificate—see section 41.
development application means:
(a)  a development application within the meaning of the Environmental Planning and Assessment Act 1979, or
(b)  an application for approval of a project under Part 3A of the Environmental Planning and Assessment Act 1979, or
(c)  an application for approval of State significant infrastructure under Part 5.1 of the Environmental Planning and Assessment Act 1979.
General Register of Deeds means the General Register of Deeds maintained under the Conveyancing Act 1919.
land dealing means an action in relation to land of a kind referred to in paragraphs (a)–(h) of the definition of deal with land.
land dealing approval agreement means an agreement entered into under a condition imposed under section 42G (6) (b).
Register means the Register maintained under the Real Property Act 1900.
registrable instrument means:
(a)  an instrument (other than a caveat or registration prohibition notice) giving effect to or forming part of a land dealing (within the meaning of this Division) that is registrable or capable of being made registrable under the Real Property Act 1900 or in respect of which a recording is required or permitted (under that or any other Act or Commonwealth Act) to be made in the Register maintained under that Act, or
(b)  a plan that is required or permitted to be registered under Division 3 of Part 23 of the Conveyancing Act 1919 and that is or gives effect to or forms part of a land dealing (within the meaning of this Division), or
(c)  an instrument (other than a registration prohibition notice) giving effect to or forming part of a land dealing (within the meaning of this Division) that is registrable or in respect of which a recording is required or permitted to be made in the General Register of Deeds.
registration approval certificate—see section 41.
registration prohibition notice—see section 42O.
(2)  For the purposes of this Division, land is vested in an Aboriginal Land Council if:
(a)  the Council has a legal interest in the land, or
(a1)  the land is the whole or part of land that is, pursuant to an Aboriginal Land Agreement under section 36AA, to be transferred to the Council, or
(b)  the land is the whole or part of land the subject of a claim under section 36 and:
(i)  the Crown Lands Minister is satisfied that the land is claimable Crown land under section 36, or
(ii)  the Court has ordered under section 36 (7) that the land be transferred to the Council,
and the land has not been transferred to the Council.
(3)  In this Division, an Aboriginal Land Council is taken to make a development application for land vested in the Council if the Council consents to such an application by another person.
(4)  For the purposes of this Division, land is of cultural and heritage significance to Aboriginal persons if the land is significant in terms of the traditions, observances, customs, beliefs or history of Aboriginal persons.
40AA–40D   (Repealed)
41   Certificates—land vested in Aboriginal Land Councils
(1)  A dealing approval certificate:
(a)  for a land dealing relating to land vested in the New South Wales Aboriginal Land Council, is a certificate in the prescribed form signed by the Chief Executive Officer of the New South Wales Aboriginal Land Council that the dealing complies with section 42D, or
(b)  for a land dealing relating to land vested in a Local Aboriginal Land Council, is a certificate in the prescribed form signed by the Chief Executive Officer of the New South Wales Aboriginal Land Council that the dealing has been approved by the New South Wales Aboriginal Land Council.
(2)  A registration approval certificate for a registrable instrument relating to land vested in an Aboriginal Land Council is a certificate in the prescribed form signed by the Chief Executive Officer of the New South Wales Aboriginal Land Council that:
(a)  the registration, under the Real Property Act 1900, of the instrument is authorised under this Act, or
(b)  the registration, under Division 3 of Part 23 of the Conveyancing Act 1919, of the instrument is authorised under this Act, or
(c)  the making of a recording in respect of the instrument in the Register or the General Register of Deeds is authorised under this Act.
(3)  A dealing approval certificate signed by the Chief Executive Officer of the New South Wales Aboriginal Land Council is conclusive evidence of the matters certified in the certificate in favour of any person.
(4)  Subsection (3) does not operate in favour of any person who had knowledge that any of the matters certified in the certificate was incorrect before the land dealing was completed (whether or not any subsequent registration was required or has taken place).
(5)  A dealing approval certificate must set out any conditions of the relevant approval.
42   Restrictions on dealing with land subject to native title
(1)  An Aboriginal Land Council must not deal with land vested in it subject to native title rights and interests under section 36 (9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act).
(2)  This section does not apply to or in respect of:
(a)  the lease of land by the New South Wales Aboriginal Land Council or one or more Local Aboriginal Land Councils to the Minister administering the NPW Act under Part 4A of that Act in accordance with a condition imposed under section 36A (2), or
(b)  a transfer of land to another Aboriginal Land Council, or
(c)  a lease of land referred to in section 37 (3) (b).
42A   Restrictions on dealing with land reserved or dedicated under the NPW Act
(1)  An Aboriginal Land Council must not deal with land that is vested in it and that is reserved or dedicated under Part 4A of the NPW Act except in accordance with that Act.
(2)  This Division and Division 4A (other than sections 40, 42B and this section) do not apply to land referred to in subsection (1).
42B   Appropriation or resumption of Aboriginal land
Despite anything in any Act, land vested in an Aboriginal Land Council must not be appropriated or resumed except by an Act of Parliament.
42C   Land dealings by Aboriginal Land Councils generally
(1)  A land dealing by an Aboriginal Land Council in contravention of section 42D or 42E is void.
(2)  This Division is in addition to any requirements of or under any other Act in relation to a land dealing.
(3)  This section has effect despite any other Act or law.
42D   Land dealings by New South Wales Aboriginal Land Council
(1)  The New South Wales Aboriginal Land Council must not deal with land vested in it unless:
(a)  it has notified the Local Aboriginal Land Council (if any) for the area in which the land is situated in writing of the land affected and the type of proposed dealing, and
(b)  it has considered any comments made by that Council within 28 days of that notice being given, and
(c)    (Repealed)
(d)  it has had regard to its community, land and business plan and any of its policies that are applicable, and
(e)  if it is appropriate to do so in the circumstances, it has considered the cultural and heritage significance of the land to Aboriginal persons in determining whether to deal with the land, and
(f)  the land dealing complies with a resolution of the New South Wales Aboriginal Land Council approving the dealing.
(2)  The Chief Executive Officer of the New South Wales Aboriginal Land Council must give a dealing approval certificate for a land dealing by the Council if the Chief Executive Officer is satisfied that the Council has complied with this Division in relation to the dealing.
(3)  The Chief Executive Officer of the New South Wales Aboriginal Land Council must give a registration approval certificate for an instrument if the Chief Executive Officer is satisfied that the instrument is a registrable instrument relating to a land dealing by the Council that complies with this Division.
(4)  This section does not apply to or in respect of the following land dealings by the New South Wales Aboriginal Land Council:
(a)  a lease for a period of less than 3 years (including any option to renew the lease),
(b)  a land dealing prescribed by the regulations for the purposes of this section.
42E   Approval required for land dealings by Local Aboriginal Land Councils
(1)  A Local Aboriginal Land Council must not deal with land vested in it except in accordance with an approval of the New South Wales Aboriginal Land Council under section 42G.
(2)  However, the approval of the New South Wales Aboriginal Land Council is not required for the following land dealings by a Local Aboriginal Land Council:
(a)  a land dealing in relation to a lease for a period of less than 3 years (including any option to renew the lease) or a short-term residential tenancy agreement, other than a social housing management lease,
(b)  a land dealing prescribed by the regulations for the purposes of this section.
(3)    (Repealed)
(4)  An agreement to deal with land vested in a Local Aboriginal Land Council that is made by the Council is, if the land dealing is not approved by the New South Wales Aboriginal Land Council and an approval is required, unenforceable against the Local Aboriginal Land Council.
(5)  A person is not entitled to damages, or any other remedy, against a Local Aboriginal Land Council in respect of a warranty or other promise relating to an unenforceable agreement referred to in subsection (4).
(6)  In this section:
social housing management lease means a lease (other than a residential tenancy agreement) entered into by a Local Aboriginal Land Council in relation to the provision or management of a community benefits scheme for residential accommodation for Aboriginal persons in its area.
(7)  This section has effect despite any other Act or law.
Note.
 Approval of a land dealing by a Local Aboriginal Land Council must be by resolution of the voting members (see section 52G (e)).
42F   Applications for approval of LALC land dealings by NSWALC and assessment fees
(1)  A Local Aboriginal Land Council may apply to the New South Wales Aboriginal Land Council for the approval of a land dealing relating to land vested in the Local Aboriginal Land Council.
(2)  An application by a Local Aboriginal Land Council to the New South Wales Aboriginal Land Council for approval of a dealing with land is:
(a)  to be made in accordance with the regulations, and
(b)  to contain the matters prescribed by the regulations, and
(c)  to be accompanied by any application fee, and any documents, prescribed by the regulations.
(3)  An application may also be accompanied by such additional documents and other information as the Local Aboriginal Land Council thinks fit.
(4)  The New South Wales Aboriginal Land Council may require the Local Aboriginal Land Council to provide additional documents and other information in relation to an application.
(5)  Regulations may be made for or with respect to the following:
(a)  the fees that may be charged by the New South Wales Aboriginal Land Council for assessing and determining applications for approval of land dealings,
(b)  without limiting paragraph (a), the fees that may be charged by the New South Wales Aboriginal Land Council with respect to the costs of appointing an expert advisory panel to assess an application for approval of a land dealing,
(c)  waiver of assessment fees,
(d)  provision of securities in respect of the payment of assessment fees,
(e)  notice by the New South Wales Aboriginal Land Council to applicants for approval of proposed assessment fees or security arrangements and other matters relating to determination of the application,
(f)  the circumstances in which the New South Wales Aboriginal Land Council may refuse to assess or determine an application.
42G   Approval of LALC land dealings by NSWALC
(1) Approval requirements The New South Wales Aboriginal Land Council must (subject to subsection (2) and any requirements of the regulations), on an application for approval of a land dealing being made by a Local Aboriginal Land Council in accordance with this Act, approve (with or without conditions) the land dealing if the New South Wales Aboriginal Land Council is satisfied that:
(a)  the application is in accordance with this Act, and
(b)  the members of the Local Aboriginal Land Council have passed a resolution in accordance with subsection (5) and that the dealing is in accordance with that resolution.
(2) Refusal if contrary to LALC members’ interests The New South Wales Aboriginal Land Council may refuse to approve a land dealing if it considers that the dealing is, or is likely to be, contrary to the interests of the members of the Local Aboriginal Land Council or other Aboriginal persons within the area of that Council.
(3)  In considering whether a land dealing is contrary to any such interests, the New South Wales Aboriginal Land Council may consider (and is not limited to considering) the following:
(a)  the community, land and business plan of the Local Aboriginal Land Council and whether, and to what extent, the land dealing is consistent with that plan,
(b)  the terms of the land dealing and whether those terms are fair and equitable to the Local Aboriginal Land Council in all the circumstances,
(c)  whether the Local Aboriginal Land Council, in passing the resolution, had proper regard to the cultural and heritage significance of the land to Aboriginal persons,
(d)  any assessment of the application for approval of the land dealing by an expert advisory panel under this Division,
(e)  whether it is likely that the proceeds of the land dealing will be managed and applied in the interests of the members of the Local Aboriginal Land Council or other Aboriginal persons within the area of the Council,
(f)  any applicable policy of the New South Wales Aboriginal Land Council in relation to land dealings by Local Aboriginal Land Councils.
(4)  The New South Wales Aboriginal Land Council is not required to consider any additional information or other material provided by a person other than the Local Aboriginal Land Council in considering whether a land dealing is, or is likely to be, contrary to the interests of the members of the Local Aboriginal Land Council or other Aboriginal persons within the area of that Council.
(5) Requirements for approval resolutions A Local Aboriginal Land Council resolution approving a land dealing must:
(a)  be passed at a meeting of which prior notice was given, in accordance with the regulations, and at which a quorum was present, and
(b)  be passed by not less than 80 per cent of the voting members of the Council present at the meeting, and
(c)  contain the following matters:
(i)  the identity of the land,
(ii)  a statement that the impact of the land dealing on the cultural and heritage significance of the land to Aboriginal persons has been considered in determining whether to approve the dealing,
(iii)  the manner in which the land is to be dealt with,
(iv)  any conditions to which the approval of the dealing is subject.
(6) Conditions of approval The New South Wales Aboriginal Land Council may only impose the following kinds of conditions on an approval of a land dealing:
(a)  a condition that is to be satisfied before completion of the land dealing,
(b)  a condition that requires the Local Aboriginal Land Council or one or more parties to the land dealing to enter into an agreement with the New South Wales Aboriginal Land Council as to specified matters to be carried out before or after the dealing is completed.
Note.
 Section 119 enables conditions to be imposed on approvals and also enables approvals to be revoked.
(7)  Without limiting any other action that may be taken, failure by a Local Aboriginal Land Council to comply with a provision of a land dealing approval agreement is taken to be a breach by the Council of this Act.
(8) Approval may relate to more than one dealing An approval under this section may relate to one or more land dealings.
42H   Reasons for refusal or conditions
If the New South Wales Aboriginal Land Council refuses an application for approval of a land dealing, or approves a land dealing subject to conditions, it must give the Local Aboriginal Land Council concerned a written statement of the reasons for the decision within 28 days after a request by that Local Aboriginal Land Council for the statement.
42I   Assessment of dealings by expert advisory panels
(1)  The New South Wales Aboriginal Land Council may constitute expert advisory panels to assess applications for approval of land dealings by Local Aboriginal Land Councils.
(2)  An expert advisory panel is to be constituted in accordance with the regulations.
(3)  Regulations may be made for or with respect to the following:
(a)  a register of persons eligible to be appointed to expert advisory panels,
(b)  the addition of persons to, or removal of persons from, the register,
(c)  qualifications for inclusion on the register,
(d)  the appointment and removal of members of panels,
(e)  the remuneration of members of panels,
(f)  the circumstances in which an assessment by a panel is required or may be requested,
(g)  reports by panels,
(h)  regulating the assessment of matters by panels in respect of conflicts of interest and prohibiting persons from assessing matters if there is a conflict of interest or a pecuniary interest in a matter.
42J   Amendment and revocation of land dealing approvals
(1)  The New South Wales Aboriginal Land Council must not amend or revoke an approval of a land dealing if the land dealing has been completed or a registrable instrument has been registered in reliance on that approval.
Note.
 This provision limits the power of the New South Wales Aboriginal Land Council to amend or revoke an approval (see section 119 (4)).
(2)  If an approval of a land dealing under this Division is revoked by the New South Wales Aboriginal Land Council, any dealing approval certificate or registration approval certificate relating to the land dealing ceases to have effect.
(3)  A Local Aboriginal Land Council must return any dealing approval certificate or registration approval certificate given to it that is revoked to the New South Wales Aboriginal Land Council within 14 days of notice of the revocation being given.
42K   Certificates for dealings by Local Aboriginal Land Councils
(1) Dealing approval certificate If the New South Wales Aboriginal Land Council approves a land dealing by a Local Aboriginal Land Council under this Division, the Chief Executive Officer of the New South Wales Aboriginal Land Council must give a dealing approval certificate for the land dealing to the Local Aboriginal Land Council within 14 days of approval being given.
(2) Registration approval certificates The Chief Executive Officer of the New South Wales Aboriginal Land Council must give a registration approval certificate for an instrument relating to a land dealing by a Local Aboriginal Land Council if the Chief Executive Officer is satisfied as to the following:
(a)  that the instrument is a registrable instrument giving effect to or forming part of a land dealing approved by the New South Wales Aboriginal Land Council under this Division,
(b)  that any conditions of the approval by the New South Wales Aboriginal Land Council of the land dealing to which the instrument relates have been met,
(c)  that any community development levy payable in respect of that land dealing has been paid.
(3)  The Chief Executive Officer may refuse to give a dealing approval certificate or a registration approval certificate under this section if any assessment fee payable in relation to the application for approval of the land dealing to which the certificate relates has not been paid or is not subject to arrangements for payment that are satisfactory to the New South Wales Aboriginal Land Council.
(4)  For the purposes of any other Act or law, a dealing approval certificate for a land dealing by a Local Aboriginal Land Council land is taken to be a written consent by the New South Wales Aboriginal Land Council to the dealing.
42L   Review of approval decisions
(1)  Despite any other Act or law, the only person who has standing to bring proceedings:
(b)  for judicial review in any other court,
in relation to a decision to approve or not to approve of a land dealing, or an act or omission of the New South Wales Aboriginal Land Council in connection with any such decision, is the Local Aboriginal Land Council concerned.
(2)  This section does not confer any standing on a Local Aboriginal Land Council in respect of class 3 proceedings under the Land and Environment Court Act 1979 in connection with any such decision.
42M   Registration of dealings and instruments
(1)  The Registrar-General must, if an Aboriginal Land Council is the registered proprietor of an estate in fee simple in land, make a recording in the Register to the following effect:
(a)  that the land is subject to this Division,
(b)  that a registrable instrument may not be registered, or a recording in respect of a registrable instrument may not be made, unless the Registrar-General is satisfied that a registration approval certificate has been obtained or is not required.
(2)  The Registrar-General must not register a registrable instrument in relation to land referred to in subsection (1) if the registered proprietor of the land is an Aboriginal Land Council, unless the registrable instrument is accompanied by:
(a)  a registration approval certificate, or
(b)  a statement signed by the Chief Executive Officer of the New South Wales Aboriginal Land Council that the instrument gives effect to or forms part of a land dealing for which a registration approval certificate is not required under this Division.
Note.
 If the registered proprietor of land is an Aboriginal Land Council, an instrument or plan affecting the land that is accompanied by a registration approval certificate or the signed statement referred to above has on registration or recording all the protections afforded under the Real Property Act 1900.
(3)  Despite section 42 of the Real Property Act 1900 or any other Act, the registration of a registrable instrument, or the making of a recording, that is prohibited by this section has no effect and does not create or pass or otherwise affect any estate or interest in the land of any registered proprietor of the land, as otherwise recorded under the Real Property Act 1900.
(4)  In this section, register a registrable instrument means:
(a)  register the instrument in the Register or under the Conveyancing Act 1919, or
(b)  make a recording in the Register in respect of any such instrument, or
(c)  register a plan under Division 3 of Part 23 of the Conveyancing Act 1919.
(5)  This section does not affect the operation of any other prohibition or restriction relating to transfers or other dealings with land under this or any other Act.
42N   Certain land dealing approval agreements to run with land
(1)  This section applies to a land dealing approval agreement if it imposes obligations as to the use, development or management of, or dealings with, land vested in, or formerly vested in, an Aboriginal Land Council.
(2)  A land dealing approval agreement may be registered under this section if the following persons agree to its registration:
(a)  the New South Wales Aboriginal Land Council,
(b)  if the agreement relates to land under the Real Property Act 1900, each person who is the registered proprietor of an estate or interest in the land,
(c)  if the agreement relates to land not under the Real Property Act 1900, each person who is a party to the agreement.
(3)  On lodgment by an Aboriginal Land Council of an application for registration in a form approved by the Registrar-General, the Registrar-General is to register the land dealing approval agreement:
(a)  by making an entry in the relevant folio of the Register if the agreement relates to land under the Real Property Act 1900, or
(b)  by registering the agreement in the General Register of Deeds if the agreement relates to land not under the Real Property Act 1900.
(4)  A land dealing approval agreement that has been registered by the Registrar-General under this section is binding on, and is enforceable by and against, the successors in title to the owner who entered into the agreement and those successors in title are taken to have notice of the agreement.
(5)  The Registrar-General may, on the request in writing of the Chief Executive Officer of the New South Wales Aboriginal Land Council, cancel the registration of a land dealing approval agreement.
(6)  A reference in this section to a land dealing approval agreement includes a reference to any agreement amending a land dealing approval agreement.
(7)  In this section:
successors in title includes a mortgagee, chargee, covenant chargee or other person in possession of land pursuant to a mortgage, charge, positive covenant or other encumbrance entered into before or after the registration of the land dealing approval agreement.
42O   Enforcement of land dealing approval agreements—registration prohibition notices
(1)  This section applies to land under the Real Property Act 1900 if:
(a)  a land dealing approval agreement has been registered under section 42N, or
(b)  a current registered proprietor of an estate or interest in the land is a party to a land dealing approval agreement in respect of the land.
(2)  The New South Wales Aboriginal Land Council may lodge with the Registrar-General a notice in writing prohibiting, except with the consent of that Council, the registration or recording of any dealing affecting an estate or interest in land to which this section applies (a registration prohibition notice).
(3)  A registration prohibition notice is to be in the form approved by the Registrar-General and must contain the following:
(a)  the name and address of the person who is the registered proprietor of an estate or interest in the land affected by the notice,
(b)  if the registration notice relates only to part of the land described in a folio of the Register, a description of that part,
(c)  a statement that the prohibition notice relates to the land (or part of the land) in respect of which a dealing approval agreement has been entered into under this Division.
(4)  On the lodgment of a registration prohibition notice, the Registrar-General must give notice in writing of the lodgment to any registered proprietor of an estate or interest in land affected by the notice, at the address specified in the notice.
(5)  Notice of lodgment is not required to be given to a registered proprietor under subsection (4) if the consent of the registered proprietor to the lodgment is endorsed on the registration prohibition notice.
(6)  The Registrar-General must, if satisfied that the notice complies with any requirements made in respect of it under this Division or the Real Property Act 1900, record in the Register such particulars of the notice as the Registrar-General thinks appropriate.
(7)  A caveat does not prevent the recording of a registration prohibition notice under this section.
(8)  A registration prohibition notice lodged under this section has effect when particulars of the notice are recorded in the Register under this section.
(9)  A registration prohibition notice may be withdrawn by the New South Wales Aboriginal Land Council, by notice in writing in the form approved by the Registrar-General and on payment of the fee (if any) prescribed by the regulations, and on being withdrawn, ceases to be in force.
42P   Effect of registration prohibition notices
(1)  The Registrar-General must not, except with the consent in writing of the New South Wales Aboriginal Land Council notified in writing by the Chief Executive Officer of the Council, record or register in the Register any dealing if it appears to the Registrar-General that the registration or recording of the dealing is prohibited by a registration prohibition notice that has effect under this Division.
(2)  The New South Wales Aboriginal Land Council must not refuse to give consent under this section if:
(a)  the dealing or the registration or recording of the dealing is permitted by the applicable land dealing approval agreement, or
(b)  the dealing or the registration or recording does not materially affect the performance or enforcement of that agreement.
(3)  The regulations may provide that a registration prohibition notice does not prevent the Registrar-General from registering or recording a dealing of a class prescribed by the regulations.
(4)  If in any legal proceedings a question arises as to the validity of a registration prohibition notice, the court is to disregard any failure to comply strictly with the requirements of this Division as to the form of the notice.
(5)  This section:
(a)  has effect despite the Real Property Act 1900 or any other Act or law, and
(b)  does not affect the operation of any other prohibition or restriction relating to transfers or other dealings with land.