Native Title Act 1993

13A Overview of Division

Subdivision A—Acts attributable to the Commonwealth

14 Validation of Commonwealth acts

15 Effect of validation on native title

16 Preservation of beneficial reservations and conditions

17 Entitlement to compensation

18 Where just terms invalidity

Subdivision B—Acts attributable to a State or Territory

19 State/Territory acts may be validated

20 Entitlement to compensation

Division 2A—Validation of intermediate period acts etc.

Subdivision A—Overview of Division

21 Overview of Division

Subdivision B—Acts attributable to the Commonwealth

22A Validation of Commonwealth acts

22B Effect of validation on native title

22C Preservation of beneficial reservations and conditions

22D Entitlement to compensation

22E Where “just terms” invalidity

22EA Requirement to notify: mining rights

Subdivision C—Acts attributable to a State or Territory

22F State/Territory acts may be validated

22G Entitlement to compensation

22H Requirement to notify: mining rights

Division 2AA—Validation of transfers under New South Wales land rights legislation

22I Overview of Division

22J Validation of transfers

22K Effect of validation on native title

22L Entitlement to compensation

Division 2B—Confirmation of past extinguishment of native title by certain valid or validated acts

23A Overview of Division

23B Previous exclusive possession act

23C Confirmation of extinguishment of native title by previous exclusive possession acts of Commonwealth

23D Preservation of beneficial reservations and conditions

23DA Confirmation of validity of use of certain land held by Crown etc.

23E Confirmation of extinguishment of native title by previous exclusive possession acts of State or Territory

23F Previous non‑exclusive possession act

23G Confirmation of partial extinguishment of native title by previous non‑exclusive possession acts of Commonwealth

23H Preservation of beneficial reservations and conditions

23HA Notification

23I Confirmation of partial extinguishment of native title by previous non‑exclusive possession acts of State or Territory

23J Compensation

23JA Attribution of certain acts

Division 3—Future acts etc. and native title

Subdivision A—Preliminary

24AA Overview

24AB Order of application of provisions

24AC Regulations about notification

Subdivision B—Indigenous land use agreements (body corporate agreements)

24BA Indigenous land use agreements (body corporate agreements)

24BB Coverage of body corporate agreements

24BC Body corporate agreements only where bodies corporate for whole area

24BD Parties to body corporate agreements

24BE Consideration and conditions

24BF Assistance to make body corporate agreements

24BG Application for registration of body corporate agreements

24BH Notice of body corporate agreements

24BI Registration of body corporate agreements

Subdivision C—Indigenous land use agreements (area agreements)

24CA Indigenous land use agreements (area agreements)

24CB Coverage of area agreements

24CC Requirement that no bodies corporate for whole of area

24CD Parties to area agreements

24CE Consideration and conditions

24CF Assistance to make area agreements

24CG Application for registration of area agreements

24CH Notice of area agreements etc.

24CI Objections against registration

24CJ Decision about registration

24CK Registration of area agreements certified by representative bodies

24CL Registration of area agreements not certified by representative Aboriginal/Torres Strait Islander bodies

Subdivision D—Indigenous land use agreements (alternative procedure agreements)

24DA Indigenous land use agreements (alternative procedure agreements)

24DB Coverage of alternative procedure agreements

24DC No extinguishment of native title

24DD Bodies corporate and representative bodies etc.

24DE Parties to alternative procedure agreements

24DF Consideration and conditions

24DG Assistance to make alternative procedure agreements

24DH Application for registration of alternative procedure agreements

24DI Notice of alternative procedure agreements

24DJ Objections against registration

24DK Decision about registration

24DL Registration of alternative procedure agreements

24DM Other registration procedures and conditions

Subdivision E—Effect of registration of indigenous land use agreements

24EA Contractual effect of registered agreement

24EB Effect of registration on proposed acts covered by indigenous land use agreements

24EBA Effect of registration on previous acts covered by indigenous land use agreements

24EC Agreements unrelated to future acts

24ED Amended agreements

Subdivision F—Future acts: if procedures indicate absence of native title

24FA Consequences if section 24FA protection applies

24FB When section 24FA protection arises—government applications

24FC When section 24FA protection arises—non‑government applications

24FD When section 24FA protection arises—entry on National Native Title Register

24FE Relevant native title claim

Subdivision G—Future acts and primary production

24GA Primary production activity

24GB Acts permitting primary production on non‑exclusive agricultural and pastoral leases

24GC Primary production etc. activities on non‑exclusive agricultural or pastoral leases

24GD Acts permitting off‑farm activities that are directly connected to primary production activities

24GE Granting rights to third parties etc. on non‑exclusive agricultural or pastoral leases

Subdivision H—Management of water and airspace

24HA Management or regulation of water and airspace

Subdivision I—Renewals and extensions etc.

24IA Future acts to which this section applies

24IB Pre‑existing right‑based acts

24IC Future acts that are permissible lease etc. renewals

24ID Effect of Subdivision applying to an act

Subdivision JA—Public housing etc.

24JAA Public housing etc.

Subdivision J—Reservations, leases etc.

24JA Acts covered by this Subdivision

24JB Treatment of acts covered by section 24JA

Subdivision K—Facilities for services to the public

24KA Facilities for services to the public

Subdivision L—Low impact future acts

24LA Low impact future acts

Subdivision M—Acts passing the freehold test

24MA Legislative acts

24MB Non‑legislative acts

24MC Only onshore places covered

24MD Treatment of acts that pass the freehold test

Subdivision N—Acts affecting offshore places

24NA Acts affecting offshore places

Subdivision O—Future acts invalid unless otherwise provided

24OA Future acts invalid unless otherwise provided

Subdivision P—Right to negotiate

25 Overview of Subdivision

26 When Subdivision applies

26A Approved exploration etc. acts

26B Approved gold or tin mining acts

26C Excluded opal or gem mining

26D Excluded mining acts: earlier valid acts

27 Arbitral body

27A Relevant Minister

27B Conditions under agreements or determinations etc.

28 Act invalid if done before negotiation or objection/appeal etc.

29 Notification of parties affected

30 Other native title parties etc.

30A Negotiation parties

31 Normal negotiation procedure

32 Expedited procedure

33 Negotiations to include certain things

34 No agreement if determination

35 Application for arbitral body determination

36 Arbitral body determination to be made as soon as practicable

36A Ministerial determination if arbitral body determination delayed

36B Consultation prior to section 36A determination

36C Section 36A determinations

37 No arbitral body determination if agreement or Ministerial determination

38 Kinds of arbitral body determinations

39 Criteria for making arbitral body determinations

40 No re‑opening of issues previously decided

41 Effect of determination or agreement

41A Copies of agreements and determinations

41B Access to information about agreements

42 Overruling of determinations

42A Project acts—modified application of Subdivision

43 Modification of Subdivision if satisfactory alternative State or Territory provisions

43A Exception to right to negotiate: satisfactory State/Territory provisions

43B Mining rights covering both alternative provision area and other area

44 Additional operation of Subdivision

Subdivision Q—Conferral of access rights on native title claimants in respect of non‑exclusive agricultural and pastoral leases

44A Conditions for Subdivision to apply

44B Rights of access for traditional activities

44C Suspension of native title rights

44D Certain other laws not affected

44E Federal Court jurisdiction

44F Request for mediation

44G Other mediation, arbitration and agreements not excluded by Subdivision

Division 4—Other provisions relating to native title

44H Rights conferred by valid leases etc.

45 RDA compensation to be determined under this Act

46 Effect of grant of leases and licences validated by McArthur River legislation

47 Pastoral leases held by native title claimants

47A Reserves etc. covered by claimant applications

47B Vacant Crown land covered by claimant applications

47C National parks etc. covered by native title applications

Division 5—Determination of compensation for acts affecting native title etc.

48 Compensation payable in accordance with Division

49 No multiple compensation for essentially same act

50 Bodies that may determine compensation

51 Criteria for determining compensation

51A Limit on compensation

52 Bank guarantee required under right to negotiate procedures

52A Payment held in trust under right to negotiate procedures

53 Just terms compensation

54 Commonwealth compensation payable from CRF

Division 6—Native title functions of prescribed bodies corporate and holding of native title in trust

55 Determinations by Federal Court

56 Determination whether native title to be held in trust

57 Determination of prescribed body corporate etc.

58 Functions under regulations

59 Kinds of prescribed bodies corporate may be determined

59A Prescribed bodies corporate for subsequent determinations of native title

60 Replacement of agent prescribed bodies corporate

60AAA Assistance in relation to registered native title bodies corporate

60AA Body corporate for Meriam people

Division 7—Financial matters

60AB Fees for services provided by registered native title bodies corporate in performing certain functions

60AC Opinion of the Registrar of Aboriginal and Torres Strait Islander Corporations

Part 3—Applications

Division 1AA—Overview of Part

60A Overview of Part

Division 1—Applications to the Federal Court: native title and compensation

61 Native title and compensation applications

61A Restrictions on making of certain applications

62 Information etc. in relation to certain applications

62A Power of applicants where application authorised by group

62B General law duties

62C Acting where persons are jointly the applicant etc.

63 Reference of applications to Native Title Registrar

64 Amendment of applications

66 Notice of application

66A Notice of amended application

66B Replacing the applicant

66C Registrar’s role in relation to certain applications relating to future acts

67 Overlapping native title determination applications

68 Only one determination of native title per area

Division 1A—Other applications to the Federal Court

69 Applications that may be made

70 Federal Court Rules about applications etc.

Division 2—Applications to the National Native Title Tribunal: right to negotiate

75 Right to negotiate applications

76 Material and fees to accompany applications

77 Action to be taken in relation to applications

Division 2A—Applications to the Native Title Registrar: objections against registration of indigenous land use agreements

77A Material and fees to accompany applications

77B Action to be taken in relation to applications

Division 3—Miscellaneous

78 Assistance in relation to proceedings

79 Requests for non‑monetary compensation

Part 4—Determinations of the Federal Court

Division 1—Overview of Part

79A Overview of Part

Division 1A—General

80 Operation of Part

81 Jurisdiction of the Federal Court

82 Federal Court’s way of operating

83 Assessor assisting the Federal Court

83A Federal Court may request searches to be conducted

84 Parties

84A Intervention by Commonwealth Minister

84B Parties may appoint an agent

84C Striking out applications for failure to comply with requirements of this Act

84D Proceedings affected by possible defect in authorisation

85 Representation before Federal Court

85A Costs

86 Evidence and findings in other proceedings

Division 1B—Reference for mediation

86A Purpose of mediation

86B Referral of matters for mediation

86BA Mediator may appear before the Court

86C Cessation of mediation

86D Federal Court’s powers

86E Federal Court may request reports from a mediator

Division 1C—Agreements and unopposed applications

86F Agreement to settle application etc.

86G Unopposed applications

87 Power of Federal Court if parties reach agreement

87A Power of Federal Court to make determination for part of an area

Division 2—Conferences etc.

88 Conferences

89 Right of appearance

90 Participation by telephone etc.

91 Conferences to be held in public except in special circumstances

92 Federal Court may prohibit disclosure of evidence

93 Powers of assessor to take evidence

Division 3—Orders

94 Order that compensation is payable

94A Order containing determination of native title

94B Order relating to an application that has been referred for mediation

94C Order dismissing an application relating to a future act

Division 4—Mediation

94D Mediation conferences

94E Parties at conferences

94F Other persons attending or participating in conferences

94G Producing documents

94H Referral of questions of fact or law

94J Referral of questions about whether a party should be dismissed

94K Conferences to be held in private

94L Person conducting the mediation may prohibit disclosure of information etc.

94M Person conducting the mediation etc. must not be required to give evidence or produce documents to a court

94N Report etc. to be given to Federal Court

94P Reports about breaches of the requirement to act in good faith

94Q Public reporting about breaches of the requirement to act in good faith

94R Protection of person conducting the mediation

94S Regulations about mediation

Part 5—Native Title Registrar

95 Appointment of Registrar

96 President may give directions to Registrar

96A Powers of Registrar—ILUAs and future act negotiations

97 Powers of Registrar—applications

97A Searches for Federal Court etc.

98 Powers of Registrar—registers

98AA Powers of Registrar—records of section 31 agreements

98A Power of Registrar—other public records and information

99 Delegation by Registrar

100 Remuneration and allowances

101 Terms and conditions of appointment

102 Leave of absence

103 Resignation

104 Termination of appointment

105 Outside employment

106 Disclosure of interests by Registrar

106A Appointment of acting Registrar

Part 6—National Native Title Tribunal

Division 1—Establishment, purpose and way of operating

107 Establishment of the National Native Title Tribunal

108 Function of the Tribunal

109 Tribunal’s way of operating

Division 2—Membership of the National Native Title Tribunal

110 Membership of the Tribunal

111 Appointment of members of Tribunal

112 Appointment of a Judge or an assessor as a member not to affect tenure etc.

113 Delegation to members

114 Remuneration and allowances

115 Terms and conditions of appointment

115A Acting appointments

116 Oath or affirmation of office

117 Leave of absence

118 Resignation

119 Termination of appointment—members other than Judges or assessors

120 Suspension of members other than a Judge—misbehaviour or incapacity

121 Outside employment

122 Disclosure of interests

Division 3—Organisation of the Tribunal

123 Arrangement of business

124 Constitution of Tribunal for exercise of powers

125 Reconstitution of the Tribunal

126 Member presiding

127 Places of sitting

Division 4—Management of the Tribunal

Subdivision A—Management responsibilities etc. of President of Tribunal and Federal Court Chief Executive Officer

128 Management of administrative affairs of Tribunal

129 Federal Court Chief Executive Officer

129A Delegation by Federal Court Chief Executive Officer

Subdivision B—Other officers, staff and consultants

130 Deputy Registrars and staff etc.

131A President may arrange for consultants to be engaged

131B Disclosure of interests

Subdivision C—Miscellaneous administrative matters

133 Annual report

136 Proceedings arising out of administrative affairs of Tribunal

Division 4AA—Review on whether there are native title rights and interests

136GC Review on whether there are native title rights and interests

136GD Member conducting a review may prohibit disclosure of information

136GE Reports

Division 4B—How assistance, mediation or review is to be provided

136H Regulations about assistance, mediation or review

Division 5—Inquiries and determinations by the Tribunal

Subdivision A—Special inquiries

137 Special inquiries

138 Notice

Subdivision AA—Native title application inquiries

138A Application

138B Native title application inquiries

138C Tribunal to hold inquiry

138D Notice to be given to certain persons before inquiry is held

138E Relationship to mediation and reviews on whether there are native title rights and interests

138F Cessation of inquiry

138G Inquiries may cover more than one proceeding

Subdivision B—Inquiries—General

139 Inquiries

140 Inquiries may cover more than one matter

141 Parties

142 Opportunity to make submissions concerning evidence

143 Representation before Tribunal

144 Manner in which questions to be decided

145 Reference of questions of law to the Federal Court

146 Evidence and findings in other proceedings

147 Power of Tribunal where a proceeding is frivolous or vexatious

148 Power of Tribunal where no jurisdiction, failure to proceed etc.

149 Power of Tribunal where applicant requests dismissal

149A Power of Tribunal to reinstate application

Subdivision C—Conferences and hearings

150 Conferences

151 Hearings

152 Right of appearance

153 Participation by telephone etc.

154 Hearings to be held in public except in special circumstances

154A Exception—hearings to be held in private if held during course of a native title application inquiry

155 Tribunal may prohibit disclosure of evidence

156 Powers of Tribunal to take evidence

157 Tribunal may authorise another person to take evidence

158 Interpreters

159 Retention and copying of documents

Subdivision D—Determinations and reports

162 Determination of the Tribunal—right to negotiate applications

163 Reports after special inquiries

163AA Reports after inquiries into subsection 24DJ(1) objection applications

163A Reports after native title application inquiries

164 Determinations and reports to be in writing

Subdivision F—Appeals

169 Appeals to Federal Court from decisions and determinations of the Tribunal

170 Operation and implementation of a decision or determination that is subject to appeal

Division 6—Offences

171 Failure of witness to attend

172 Refusal to be sworn or to answer questions etc.

173 Giving of false or misleading evidence

174 Refusal to produce document

176 Contravention of direction prohibiting disclosure of evidence

177 Contempt of Tribunal

178 Sending of documents to the Federal Court

179 Return of documents etc. at completion of proceeding

180 Protection of members and persons giving evidence

181 Confidential information not to be disclosed

182 Fees for persons giving evidence

Part 7—Register of Native Title Claims

184 Claims to native title

185 Register of Native Title Claims

186 Contents of the Register

187 Inspection of the Register

188 Parts of the Register may be kept confidential

189 Senior Registrar of the High Court to notify Registrar

189A Federal Court Chief Executive Officer to notify Native Title Registrar

190 Keeping the Register

190A Registrar to consider claims

190B Registration: conditions about merits of the claim

190C Registration: conditions about procedural and other matters

190D If the claim cannot be registered—notice of decision

190E If the claim cannot be registered—reconsideration by the NNTT

190F If the claim cannot be registered—review by Federal Court

191 Delegation by Registrar to recognised State/Territory body

Part 8—National Native Title Register

192 National Native Title Register

193 Contents of the Register

194 Inspection of the Register

195 Parts of the Register may be kept confidential

197 Keeping the Register

198 Delegation by Registrar to recognised State/Territory body

199 Registrar to notify land titles office

Part 8A—Register of Indigenous Land Use Agreements

199A Register of Indigenous Land Use Agreements

199B Contents of the Register etc.

199C Removal of details of agreement from Register

199D Inspection of the Register

199E Parts of the Register to be kept confidential

199F Delegation by Registrar

Part 9—Financial assistance to States and Territories

200 Financial assistance to States and Territories

Part 11—Representative Aboriginal/Torres Strait Islander bodies

Division 1—Preliminary

201A Definitions

201B Eligible bodies

Division 2—Recognition of representative Aboriginal/Torres Strait Islander bodies

203A Inviting applications for recognition

203AA Revocation of invitations

203AAA Eligible body must notify the Commonwealth Minister if it decides not to apply for recognition etc.

203AB Application for recognition

203AC Dealing with applications

203AD Recognition of representative bodies

203AE Commonwealth Minister may vary an area for which a body is the representative body

203AF Notification requirements for the variation of an area on the Commonwealth Minister’s own initiative

203AG Notice of decision on variation

203AH Withdrawal of recognition

203AI Matters to which Commonwealth Minister must have regard

Division 3—Functions and powers of representative bodies

203B Functions of representative bodies

203BA How functions of representative bodies are to be performed

203BB Facilitation and assistance functions

203BC How facilitation and assistance functions are to be performed

203BD Matters that overlap different representative body areas

203BE Certification functions

203BF Dispute resolution functions

203BG Notification functions

203BH Agreement making function

203BI Internal review functions

203BJ Other functions

203BK Powers of representative bodies

Division 4—Finance

203C Funding of representative bodies

203CA Conditions of funding

203CB Banking and investment

Division 5—Accountability

203DA Accounting records

203DB Payments to be properly made etc.

203DF Inspection and audit, or investigation, of a representative body

203DG Access to information

203DH Effect of withdrawal of recognition

Division 6—Conduct of directors and other executive officers

203E Application of Division

203EA Representative bodies that are not corporations

203EB Representative bodies registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006

203F Secretary to inform Minister of certain matters

203FB Review of assistance decisions

203FBA External review

203FBB Review by Secretary of the Department

203FC Transfer of documents and records

203FCA Representative body etc. to comply with wishes of traditional custodians

203FD Liability of executive officers etc.

203FE Provision of funding by the Commonwealth

203FEA Application of this Act to persons and bodies funded under subsection 203FE(1)

203FEB Application of this Act to persons and bodies funded under subsection 203FE(2)

203FEC Certain provisions do not apply to persons and bodies funded under subsection 203FE(1) or (2)

203FED Liability

203FF Financial and accountability requirements imposed by other legislation

203FG False statements etc.

203FH Conduct by directors, employees and agents

203FI Delegation

Part 12A—State/Territory bodies

207A Recognised State/Territory body

207B Equivalent State/Territory bodies

Part 13—Miscellaneous

208 Act not to apply so as to exceed Commonwealth power

209 Reports by Aboriginal and Torres Strait Islander Social Justice Commissioner

209A Evaluation of amendments made by the Native Title Legislation Amendment Act 2021

210 Operation of beneficial land rights laws not affected

211 Preservation of certain native title rights and interests

212 Confirmation of ownership of natural resources, access to beaches etc.

213 Provisions relating to Federal Court jurisdiction

214 Application of amended rules of evidence in proceedings before the Federal Court

215 Regulations

Part 15—Definitions

Division 1—List of definitions

222 List of definitions

Division 2—Key concepts: Native title and acts of various kinds etc.

223 Native title

224 Native title holder

225 Determination of native title

226 Act

227 Act affecting native title

228 Past act

229 Category A past act

230 Category B past act

231 Category C past act

232 Category D past act

232A Intermediate period act

232B Category A intermediate period act

232C Category B intermediate period act

232D Category C intermediate period act

232E Category D intermediate period act

233 Future act

237 Act attracting the expedited procedure

237A Extinguish

238 Non‑extinguishment principle

239 Act attributable to the Commonwealth, a State or a Territory

240 Similar compensable interest test

Division 3—Leases

241 Coverage of Division

242 Lease

243 Lessee

244 Permit

245 Mining lease

246 Commercial lease

247 Agricultural lease

247A Exclusive agricultural lease

247B Non‑exclusive agricultural lease

248 Pastoral lease

248A Exclusive pastoral lease

248B Non‑exclusive pastoral lease

249 Residential lease

249A Community purposes lease

249B Perpetual lease

249C Scheduled interest

Division 4—Sundry definitions etc.

250 Application to things happening before commencement

251A Authorising the making of indigenous land use agreements

251B Authorising the making of applications

251BA Conditions on authority

251C Towns and cities

251D Land or waters on which a public work is constructed, established or situated

252 Notify the public in the determined way

253 Other definitions

Schedule 1—Scheduled interests

Part 1—New South Wales

1 Crown Lands Occupation Act 1861

2 Crown Lands Act 1884

3 Western Lands Act 1901, Crown Lands Consolidation Act 1913 and other land Acts

4 Returned Soldiers Settlement Act 1916

5 Closer Settlement Amendment (Conversion) Act 1943

6 Crown Lands Act 1989

7 National Parks legislation

8 Various Acts

Part 2—Victoria

9 Land Acts etc.

10 Water Acts etc.

11 Forests Acts

12 National Parks Act 1975

13 Alpine Resorts Act 1983

14 Gardens Acts

15 Settlement Acts etc.

16 Crown Land (Reserves) Act 1978

17 Melbourne and Metropolitan Board of Works Acts

18 Port Acts etc.

19 Railway and Transport Acts

20 Various Acts

Part 3—Queensland

21 Leases under various Land Acts etc.

22 Freeholding leases

23 Homestead interests

24 Settlement farm leases

25 Agricultural farms

26 Perpetual lease selections

27 Perpetual town leases

28 Perpetual suburban leases

29 Perpetual country leases

30 Prickly pear‑related interests

31 Leases under agreements given the force of law

32 Various interests

Part 4—Western Australia

33 Legislation before 1898

34 Land Act 1898 and Land Act 1933

35 Other legislation after 1898

36 Leases under certain mining‑related and other Acts

Part 5—South Australia

37 Perpetual leases and leases for a term of years

38 Miscellaneous leases

39 Other interests

Part 6—Tasmania

40 Crown Lands Acts

41 Closer Settlement Act 1929

Part 7—Northern Territory

42 Town leases etc.

43 Agricultural leases etc.

44 Leases for special purposes etc.

45 Miscellaneous leases

46 Other leases

Endnotes

An Act about native title in relation to land or waters, and for related purposes

Preamble

This preamble sets out considerations taken into account by the Parliament of Australia in enacting the law that follows.

The people whose descendants are now known as Aboriginal peoples and Torres Strait Islanders were the inhabitants of Australia before European settlement.

They have been progressively dispossessed of their lands. This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.

As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.

The people of Australia voted overwhelmingly to amend the Constitution so that the Parliament of Australia would be able to make special laws for peoples of the aboriginal race.

The Australian Government has acted to protect the rights of all of its citizens, and in particular its indigenous peoples, by recognising international standards for the protection of universal human rights and fundamental freedoms through:

 (a) the ratification of the International Convention on the Elimination of All Forms of Racial Discrimination and other standard‑setting instruments such as the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights; and

 (b) the acceptance of the Universal Declaration of Human Rights; and

 (c) the enactment of legislation such as the Racial Discrimination Act 1975 and the Australian Human Rights Commission Act 1986.

The High Court has:

 (a) rejected the doctrine that Australia was terra nullius (land belonging to no‑one) at the time of European settlement; and

 (b) held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands; and

 (c) held that native title is extinguished by valid government acts that are inconsistent with the continued existence of native title rights and interests, such as the grant of freehold or leasehold estates.

The people of Australia intend:

 (a) to rectify the consequences of past injustices by the special measures contained in this Act, announced at the time of introduction of this Act into the Parliament, or agreed on by the Parliament from time to time, for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

 (b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

The needs of the broader Australian community require certainty and the enforceability of acts potentially made invalid because of the existence of native title. It is important to provide for the validation of those acts.

Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect.

It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

Governments should, where appropriate, facilitate negotiation on a regional basis between the parties concerned in relation to:

 (a) claims to land, or aspirations in relation to land, by Aboriginal peoples and Torres Strait Islanders; and

 (b) proposals for the use of such land for economic purposes.

It is important that appropriate bodies be recognised and funded to represent Aboriginal peoples and Torres Strait Islanders and to assist them to pursue their claims to native title or compensation.

It is also important to recognise that many Aboriginal peoples and Torres Strait Islanders, because they have been dispossessed of their traditional lands, will be unable to assert native title rights and interests and that a special fund needs to be established to assist them to acquire land.

The Parliament of Australia intends that the following law will take effect according to its terms and be a special law for the descendants of the original inhabitants of Australia. 

The law, together with initiatives announced at the time of its introduction and others agreed on by the Parliament from time to time, is intended, for the purposes of paragraph 4 of Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and the Racial Discrimination Act 1975, to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders, and is intended to further advance the process of reconciliation among all Australians.

The Parliament of Australia therefore enacts:

Part 1—Preliminary

1  Short title

  This Act may be cited as the Native Title Act 1993.

2  Commencement

Commencement of provisions on Royal Assent

 (1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.

Commencement of provisions by Proclamation

 (2) Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

Forced commencement of provisions

 (3) If a provision referred to in subsection (2) does not commence under that subsection within the period of 9 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3  Objects

Main objects

  The main objects of this Act are:

 (a) to provide for the recognition and protection of native title; and

 (b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and

 (c) to establish a mechanism for determining claims to native title; and

 (d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.

4  Overview of Act

Recognition and protection of native title

 (1) This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.

Topics covered

 (2) Essentially, this Act covers the following topics:

 (a) acts affecting native title (see subsections (3) to (6));

 (b) determining whether native title exists and compensation for acts affecting native title (see subsection (7)).

Kinds of acts affecting native title

 (3) There are basically 2 kinds of acts affecting native title:

 (a) past acts (mainly acts done before this Act’s commencement on 1 January 1994 that were invalid because of native title); and

 (b) future acts (mainly acts done after this Act’s commencement that either validly affect native title or are invalid because of native title).

Consequences of past acts and future acts

 (4) For past acts and future acts, this Act deals with the following matters:

 (a) their validity;

 (b) their effect on native title;

 (c) compensation for the acts.

Intermediate period acts

 (5) However, for certain acts (called intermediate period acts) done mainly before the judgment of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1, that would be invalid because they fail to pass any of the future act tests in Division 3 of Part 2, or for any other reason because of native title, this Act provides for similar consequences to past acts.

Confirmation of extinguishment of native title

 (6) This Act also confirms that many acts done before the High Court’s judgment, that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23B), the extinguishment is complete; if the acts are previous non‑exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency.

Role of Federal Court and National Native Title Tribunal

 (7) This Act also:

 (a) provides for the Federal Court to make determinations of native title and compensation; and

 (aa) provides for the Federal Court to refer native title and compensation applications for mediation; and

 (ab) provides for the Federal Court to make orders to give effect to terms of agreements reached by parties to proceedings including terms that involve matters other than native title; and

 (b) establishes a National Native Title Tribunal with power to:

 (i) make determinations about whether certain future acts can be done and whether certain agreements concerning native title are to be covered by the Act; and

 (ii) provide assistance or undertake mediation in other matters relating to native title; and

 (c) deals with other matters such as the keeping of registers and the role of representative Aboriginal/Torres Strait Islander bodies.

5  Act binds Crown

  This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory. However, nothing in this Act renders the Crown liable to be prosecuted for an offence.

6  Application to external Territories, coastal sea and other waters

  This Act extends to each external Territory, to the coastal sea of Australia and of each external Territory, and to any waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act 1973.

7  Racial Discrimination Act

 (1) This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975.

 (2) Subsection (1) means only that:

 (a) the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and

 (b) to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity.

 (3) Subsections (1) and (2) do not affect the validation of past acts or intermediate period acts in accordance with this Act.

8  Effect of this Act on State or Territory laws

  This Act is not intended to affect the operation of any law of a State or a Territory that is capable of operating concurrently with this Act.

8A  Application of the Criminal Code

 (1) Subject to subsection (2), Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

 (2) Part 2.5 of the Criminal Code does not apply to an offence against Part 11 of this Act.

9  Definitions located in Part 15

  Part 15 contains definitions of certain expressions that are used in this Act.

Part 2—Native Title

Division 1—Recognition and protection of native title

10  Recognition and protection of native title

  Native title is recognised, and protected, in accordance with this Act.

11  Extinguishment of native title

 (1) Native title is not able to be extinguished contrary to this Act.

Effect of subsection (1)

 (2) An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title:

 (a) in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc. and native title) of Part 2; or

 (b) by validating past acts, or intermediate period acts, in relation to the native title.

13  Approved determinations of native title

Applications to Federal Court

 (1) An application may be made to the Federal Court under Part 3:

 (a) for a determination of native title in relation to an area for which there is no approved determination of native title; or

 (b) to revoke or vary an approved determination of native title on the grounds set out in subsection (5).

Native title determinations by Federal Court when determining compensation entitlements

 (a) the Federal Court is making a determination of compensation in accordance with Division 5; and

 (b) an approved determination of native title has not previously been made in relation to the whole or part of the area concerned;

the Federal Court must also make a current determination of native title in relation to the whole or the part of the area, that is to say, a determination of native title as at the time at which the determination of compensation is being made.

Note: The compensation application must contain the information that would be required for a native title determination application for the area: see section 62.

Approved determinations of native title

 (3) Subject to subsection (4), each of the following is an approved determination of native title:

 (a) a determination of native title made on an application under paragraph (1)(a) or in accordance with subsection (2);

 (b) an order, judgment or other decision of a recognised State/Territory body that involves a determination of native title in relation to an area within the jurisdictional limits of the State or Territory.

Variation or revocation of determinations

 (4) If an approved determination of native title is varied or revoked on the grounds set out in subsection (5) by:

 (a) the Federal Court, in determining an application under Part 3; or

 (b) a recognised State/Territory body in an order, judgment or other decision;

 (c) in the case of a variation—the determination as varied becomes an approved determination of native title in place of the original; and

 (d) in the case of a revocation—the determination is no longer an approved determination of native title.

Grounds for variation or revocation

 (5) For the purposes of subsection (4), the grounds for variation or revocation of an approved determination of native title are:

 (a) that events have taken place since the determination was made that have caused the determination no longer to be correct; or

 (b) that the interests of justice require the variation or revocation of the determination; or

 (c) that the determination relates to an area in relation to which the agreement required by paragraph 47C(1)(b) has been given.

Note: Section 47C provides for extinguishment of native title rights and interests in relation to certain areas such as national parks etc. to be disregarded.

Review or appeal

 (6) If:

 (a) a determination of the Federal Court; or

 (b) an order, judgment or other decision of a recognised State/Territory body;

is subject to any review or appeal, this section refers to the determination, order, judgment or decision as affected by the review or appeal, when finally determined.

High Court determinations

 (7) A determination of native title by the High Court is an approved determination of native title.

Division 2—Validation of past acts

Subdivision AA—Overview of Division

13A  Overview of Division

 (1) In summary, this Division validates, or allows States and Territories to validate, certain acts that:

 (a) took place before 1 January 1994; and

 (b) would otherwise be invalid because of native title.

This Division also covers certain acts done after that day consisting of an extension or renewal etc. of an act done before that day.

 (2) The acts validated are called past acts; they are defined in section 228.

 (3) This Division also sets out the effect of such validation on native title. The effect varies depending on the nature of the act. For this purpose, different categories of past act are defined by sections 229 to 232.

Subdivision A—Acts attributable to the Commonwealth

14  Validation of Commonwealth acts

 (1) If a past act is an act attributable to the Commonwealth, the act is valid, and is taken always to have been valid.

Effect of validation of law

 (2) To avoid any doubt, if a past act validated by subsection (1) is the making, amendment or repeal of legislation, subsection (1) does not validate:

 (a) the grant or issue of any lease, licence, permit or authority; or

 (b) the creation of any interest in relation to land or waters;

under any legislation concerned, unless the grant, issue or creation is itself a past act attributable to the Commonwealth.

15  Effect of validation on native title

 (1) If a past act is an act attributable to the Commonwealth:

 (a) if it is a category A past act other than one to which subsection 229(4) (which deals with public works) applies—the act extinguishes the native title concerned; and

 (b) if it is a category A past act to which subsection 229(4) applies:

 (i) in any case—the 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; and

 (ii) if paragraph 229(4)(a) applies—the extinguishment is taken to have happened on 1 January 1994; and

 (c) if it 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—the act extinguishes the native title to the extent of the inconsistency; and

 (d) if it is a category C past act or a category D past act—the non‑extinguishment principle applies to the act.

Note: This subsection does not apply to the act if section 23C or 23G applies to the act.

 (2) The extinguishment effected by this section does not by itself confer any right to eject or remove any Aboriginal persons 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 14.

16  Preservation of beneficial reservations and conditions

  If:

 (a) the act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or

 (b) the doing of the act would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 15 affects that reservation or condition or those rights or interests.

17  Entitlement to compensation

Extinguishment case

 (1) If the act attributable to the Commonwealth is a category A past act or a category B past act, the native title holders are entitled to compensation for the act.

Non‑extinguishment case

 (2) If it is any other past act, the native title holders are entitled to compensation for the act if:

 (a) the native title concerned is to some extent in relation to an onshore place and the act could not have been validly done on the assumption that the native title holders instead held ordinary title to:

 (i) any land concerned; and

 (ii) the land adjoining, or surrounding, any waters concerned; or

 (b) the native title concerned is to some extent in relation to an offshore place; or

 (c) the native title concerned relates either to land or to waters and the similar compensable interest test is satisfied in relation to the act.

Compensation for partial effect of act

 (3) If the entitlement arises only because one, but not both, of paragraphs (2)(a) and (b) are satisfied, it is only an entitlement for the effect of the act on the native title in relation to the onshore place, or the offshore place, mentioned in the relevant paragraph.

 (4) The compensation is payable by the Commonwealth.

18  Where just terms invalidity

Section applies if acquisition of property other than on just terms

 (1) This section applies if the invalidity (disregarding section 14) of a past act attributable to the Commonwealth results from a paragraph 51(xxxi) acquisition of property by the Commonwealth from any person having been made otherwise than on paragraph 51(xxxi) just terms.

Entitlement to compensation

 (2) The person is entitled to compensation from the Commonwealth for the acquisition in accordance with Division 5 and, if that compensation does not ensure that the acquisition is made on paragraph 51(xxxi) just terms, to such additional compensation from the Commonwealth as is necessary to ensure that it is.

Subdivision B—Acts attributable to a State or Territory

19  State/Territory acts may be validated

 (1) If a law of a State or Territory contains provisions to the same effect as sections 15 and 16, the law of the State or Territory may provide that past acts attributable to the State or Territory are valid, and are taken always to have been valid.

Effect of validation of law

 (2) To avoid any doubt, if a past act validated by subsection (1) is the making, amendment or repeal of legislation, subsection (1) does not validate:

 (a) the grant or issue of any lease, licence, permit or authority; or

 (b) the creation of any interest in relation to land or waters;

under any legislation concerned, unless the grant, issue or creation is itself a past act attributable to the State or Territory.

20  Entitlement to compensation

 (1) If a law of a State or Territory validates a past act attributable to the State or Territory in accordance with section 19, the native title holders are entitled to compensation if they would be so entitled under subsection 17(1) or (2) on the assumption that section 17 applied to acts attributable to the State or Territory.

Compensation where no validation

 (2) Native title holders are entitled to compensation for the past act attributable to a State or Territory that, at the time when the claim for compensation is determined, has not been validated by the State or Territory in accordance with section 19.

 (3) The native title holders may recover the compensation from the State or Territory.

States or Territories may create compensation entitlement

 (4) This section does not prevent a law of a State or Territory from creating an entitlement to compensation for a past act or for the validation of a past act.

Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth, State and Territory laws.

Division 2A—Validation of intermediate period acts etc.

Subdivision A—Overview of Division

21  Overview of Division

 (1) In summary, this Division validates, or allows States and Territories to validate, certain acts that:

 (a) took place on or after 1 January 1994 but on or before 23 December 1996; and

 (b) would otherwise be invalid to any extent because they fail to pass any of the future act tests in Division 3 of Part 2 or for any other reason because of native title.

 (2) The acts are called intermediate period acts; they are defined in section 232A.

 (3) For this validation to apply, before the act was done, there must have been:

 (a) a grant of a freehold estate or a lease (other than a mining lease); or

 (b) a public work;

over any of the land or waters concerned.

 (4) The Division also sets out the effect of such validation on native title. The effect varies depending on the nature of the act. For this purpose, different categories of intermediate period act are defined by sections 232B to 232E.

 (5) The structure of the Division is very similar to that of Division 2 (which deals with validation of past acts).

Subdivision B—Acts attributable to the Commonwealth

22A  Validation of Commonwealth acts

  If an intermediate period act is an act attributable to the Commonwealth, the act is valid, and is taken always to have been valid.

22B  Effect of validation on native title

  Subject to subsection 24EBA(6), if an intermediate period act is an act attributable to the Commonwealth:

 (a) if it is a category A intermediate period act to which subsection 232B(2), (3) or (4) (which deal with things such as the grant or vesting of freehold estates and certain leases) applies—the act extinguishes all native title in relation to the land or waters concerned; and

 (b) if it is a category A intermediate period act to which subsection 232B(7) (which deals with public works) applies:

 (i) the 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; and

 (ii) the extinguishment is taken to have happened when the construction or establishment began; and

 (c) if it is 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—the act extinguishes the native title to the extent of the inconsistency; and

 (d) if it is a category C intermediate period act or a category D intermediate period act—the non‑extinguishment principle applies to the act.

Note: This section does not apply to the act if section 23C or 23G applies to the act.

22C  Preservation of beneficial reservations and conditions

  If:

 (a) an intermediate period act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or

 (b) the doing of an intermediate period act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 22B affects that reservation or condition or those rights or interests.

22D  Entitlement to compensation

 (1) If an intermediate period act is an act attributable to the Commonwealth, the native title holders are entitled to compensation for the act.

 (2) The compensation is payable by the Commonwealth.

22E  Where “just terms” invalidity

Section applies if acquisition of property other than on just terms

 (1) This section applies if the invalidity (disregarding section 22A) of an intermediate period act attributable to the Commonwealth results from a paragraph 51(xxxi) acquisition of property by the Commonwealth from any person having been made otherwise than on paragraph 51(xxxi) just terms.

Entitlement to compensation

 (2) The person is entitled to compensation from the Commonwealth for the acquisition in accordance with Division 5 and, if that compensation does not ensure that the acquisition is made on paragraph 51(xxxi) just terms, to such additional compensation from the Commonwealth as is necessary to ensure that it is.

22EA  Requirement to notify: mining rights

 (a) an act that is attributable to the Commonwealth consists of:

 (i) the creation of a right to mine; or

 (ii) the variation of such a right to extend the area to which it relates; or

 (iii) the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and

 (b) the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and

 (c) at any time before the act was done, either:

 (i) a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or

 (ii) a public work was constructed or established on any of the land or waters affected by the act;

the Commonwealth must, before the end of 6 months after this section commences:

 (d) give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and

 (e) notify the public in the determined way of the details set out in subsection (2).

Details

 (2) The details are:

 (a) the date on which the act was done; and

 (b) the kind of mining involved; and

 (c) sufficient information to enable the area affected by the act to be identified; and

 (d) information about the way in which further details about the act may be obtained.

Subdivision C—Acts attributable to a State or Territory

22F  State/Territory acts may be validated

  If a law of a State or Territory contains provisions to the same effect as sections 22B and 22C, the law of the State or Territory may provide that intermediate period acts attributable to the State or Territory are valid, and are taken always to have been valid.

22G  Entitlement to compensation

 (1) If a law of a State or Territory validates an intermediate period act attributable to the State or Territory in accordance with section 22F, the native title holders are entitled to compensation.

 (2) The native title holders may recover the compensation from the State or Territory.

States or Territories may create compensation entitlement

 (3) This section does not prevent a law of a State or Territory from creating an entitlement to compensation for an intermediate period act or for the validation of an intermediate period act.

Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth, State and Territory laws.

22H  Requirement to notify: mining rights

 (a) an act that is attributable to a State or Territory consists of:

 (i) the creation of a right to mine; or

 (ii) the variation of such a right to extend the area to which it relates; or

 (iii) the extension of the period for which such a right has effect, other than under an option or right of extension or renewal created by the lease, contract or other thing whose grant or making created the right to mine; and

 (b) the act took place at any time during the period from the beginning of 1 January 1994 until the end of 23 December 1996; and

 (c) at any time before the act was done, either:

 (i) a grant of a freehold estate or a lease was made covering any of the land or waters affected by the act; or

 (ii) a public work was constructed or established on any of the land or waters affected by the act;

the State or Territory must, before the end of 6 months after the commencement of the law of the State or Territory that validates intermediate period acts attributable to the State or Territory in accordance with section 22F:

 (d) give notice containing the details set out in subsection (2) to any registered native title body corporate, any registered native title claimant and any representative Aboriginal/Torres Strait Islander body, in relation to any of the land or waters affected by the act; and

 (e) notify the public in the determined way of the details set out in subsection (2).

Details

 (2) The details are:

 (a) the date on which the act was done; and

 (b) the kind of mining involved; and

 (c) sufficient information to enable the area affected by the act to be identified; and

 (d) information about the way in which further details about the act may be obtained.

Division 2AA—Validation of transfers under New South Wales land rights legislation

22I  Overview of Division

  In summary, this Division allows New South Wales to validate certain transfers under the Aboriginal Land Rights Act 1983 of that State.

22J  Validation of transfers

  If:

 (a) future acts consist of the transfer of lands under section 36 of the Aboriginal Land Rights Act 1983 of New South Wales; and

 (b) the claims for the lands were made before 28 November 1994; and

 (c) the acts took place before or take place after the commencement of this section; and

 (d) the acts are not intermediate period acts; and

 (e) the acts are invalid to any extent because of Division 3 of Part 2 or for any other reason, but would be valid to that extent if native title did not exist in relation to the lands;

a law of New South Wales may provide that the acts are valid, and are taken always to have been valid.

22K  Effect of validation on native title

  The non‑extinguishment principle applies to the acts.

22L  Entitlement to compensation

 (1) If a law of New South Wales validates the acts, the native title holders concerned are entitled to compensation.

 (2) The native title holders may recover the compensation from New South Wales.

Compensation to take into account rights etc. conferred by transferee

 (3) The compensation is to take into account all rights, interests and other benefits conferred, in relation to the lands, on the native title holders by, or by virtue of membership of, the Aboriginal Land Council (within the meaning of the Aboriginal Land Rights Act 1983 of New South Wales) to which the lands are transferred or by which the lands are held.

NSW may create compensation entitlement

 (4) This section does not prevent a law of New South Wales from creating an entitlement to compensation for the acts or for their validation.

Note: Paragraph 49(b) deals with the situation where there are multiple rights to compensation under Commonwealth and State legislation.

Division 2B—Confirmation of past extinguishment of native title by certain valid or validated acts

23A  Overview of Division

 (1) In summary, this Division provides that certain acts attributable to the Commonwealth that were done on or before 23 December 1996 will have completely or partially extinguished native title.

 (2) If the acts were previous exclusive possession acts (involving the grant or vesting of things such as freehold estates or leases that conferred exclusive possession, or the construction or establishment of public works), the acts will have completely extinguished native title.

 (3) If the acts were previous non‑exclusive possession acts (involving grants of non‑exclusive agricultural leases or non‑exclusive pastoral leases), they will have extinguished native title to the extent of any inconsistency.

 (4) This Division also allows States and Territories to legislate, in respect of certain acts attributable to them, to extinguish native title in the same way as is done under this Division for Commonwealth acts.

23B  Previous exclusive possession act

 (1) This section defines previous exclusive possession act.

Grant of freehold estates or certain leases etc. on or before 23.12.1996

 (2) An act is a previous exclusive possession act if:

 (a) it is valid (including because of Division 2 or 2A of Part 2); and

Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

 (b) it took place on or before 23 December 1996; and

 (c) it consists of the grant or vesting of any of the following:

 (i) a Scheduled interest (see section 249C);

 (ii) a freehold estate;

 (iii) a commercial lease that is neither an agricultural lease nor a pastoral lease;

 (iv) an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);

 (v) a residential lease;

 (vi) a community purposes lease (see section 249A);

 (vii) what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to “1 January 1994” were instead a reference to “24 December 1996”;

 (viii) any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

Vesting of certain land or waters to be covered by paragraph (2)(c)

 (a) by or under legislation of a State or a Territory, particular land or waters are vested in any person; and

 (b) a right of exclusive possession of the land or waters is expressly or impliedly conferred on the person by or under the legislation;

the vesting is taken for the purposes of paragraph (2)(c) to be the vesting of a freehold estate over the land or waters.

Construction of public works commencing on or before 23.12.1996

 (7) An act is a previous exclusive possession act if:

 (a) it is valid (including because of Division 2 or 2A); and

 (b) it consists of the construction or establishment of any public work that commenced to be constructed or established on or before 23 December 1996.

Exclusion of acts benefiting Aboriginal peoples or Torres Strait Islanders

 (9) An act is not a previous exclusive possession act if it is:

 (a) the grant or vesting of any thing that is made or done by or under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

 (b) the grant or vesting of any thing expressly for the benefit of, or to or in a person to hold on trust expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

 (c) the grant or vesting of any thing over particular land or waters, if at the time a thing covered by paragraph (a) or (b) is in effect in relation to the land or waters.

Note: The expression Aboriginal peoples is defined in section 253.

Exclusion of national parks etc.

 (9A) An act is not a previous exclusive possession act if the grant or vesting concerned involves the establishment of an area, such as a national, State or Territory park, for the purpose of preserving the natural environment of the area.

Exclusion of acts where legislation provides for non‑extinguishment

 (9B) An act is not a previous exclusive possession act if it is done by or under legislation that expressly provides that the act does not extinguish native title.

Exclusion of Crown to Crown grants etc.

 (9C) If an act is the grant or vesting of an interest in relation to land or waters to or in the Crown in any capacity or a statutory authority, the act is not a previous exclusive possession act:

 (a) unless, apart from this Act, the grant or vesting extinguishes native title in relation to the land or waters; or

 (b) if the grant or vesting does not, apart from this Act, extinguish native title in relation to the land or waters—unless and until the land or waters are (whether before or after 23 December 1996) used to any extent in a way that, apart from this Act, extinguishes native title in relation to the land or waters.

 (10) The regulations may provide that an act is not a previous exclusive possession act.

Effect of exclusions

 (11) To avoid doubt, the fact that an act is, because of any of the previous subsections, not a previous exclusive possession act does not imply that the act is not valid.

23C  Confirmation of extinguishment of native title by previous exclusive possession acts of Commonwealth

Acts other than public works

 (1) If an act is a previous exclusive possession act under subsection 23B(2) (including because of subsection 23B(3)) and is attributable to the Commonwealth:

 (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 when the act was done.

Public works

 (2) If an act is a previous exclusive possession act under subsection 23B(7) (which deals with public works) and is attributable to the Commonwealth:

 (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 establishment) was or is situated; and

 (b) the extinguishment is taken to have happened when the construction or establishment of the public work began.

Other extinguishment provisions do not apply

 (3) If this section applies to the act, sections 15 and 22B do not apply to the act.

23D  Preservation of beneficial reservations and conditions

  If:

 (a) a previous exclusive possession act attributable to the Commonwealth contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders; or

 (b) the doing of a previous exclusive possession act attributable to the Commonwealth would affect rights or interests (other than native title rights and interests) of Aboriginal peoples or Torres Strait Islanders (whether arising under legislation, at common law or in equity and whether or not rights of usage);

nothing in section 23C affects that reservation or condition or those rights or interests.

23DA  Confirmation of validity of use of certain land held by Crown etc.

  To avoid doubt, if the act is a previous exclusive possession act because of paragraph 23B(9C)(b) (which deals with grants to the Crown etc.), the use of the land or waters concerned as mentioned in that paragraph is valid.

23E  Confirmation of extinguishment of native title by previous exclusive possession acts of State or Territory

  If a law of a State or Territory contains a provision to the same effect as section 23D or 23DA, the law of the State or Territory may make provision to the same effect as section 23C in respect of all or any previous exclusive possession acts attributable to the State or Territory.

23F  Previous non‑exclusive possession act

 (1) This section defines previous non‑exclusive possession act.

Acts on or before 23.12.96

 (2) An act is a previous non‑exclusive possession act if:

 (a) it is valid (including because of Division 2 or 2A of Part 2); and

Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.

 (b) it takes place on or before 23 December 1996; and

 (c) it consists of the grant of a non‑exclusive agricultural lease (see section 247B) or a non‑exclusive pastoral lease (see section 248B).

Acts after 23.12.96

 (3) An act is also a previous non‑exclusive possession act if:

 (a) it takes place after 23 December 1996; and

 (b) it would be a previous non‑exclusive possession act under subsection (2) if that subsection were not limited in its application to acts taking place on or before 23 December 1996; and

 (c) it takes place:

 (i) in exercise of a legally enforceable right created by any act done on or before 23 December 1996; or

 (ii) in good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made.

 (4) The regulations may provide that an act is not a previous non‑exclusive possession act.

23G  Confirmation of partial extinguishment of native title by previous non‑exclusive possession acts of Commonwealth

 (1) Subject to subsection (2), if a previous non‑exclusive possession act (see section 23F) is attributable to the Commonwealth:

 (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 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; and

 (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 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

 (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; and

 (c) any extinguishment under this subsection is taken to have happened when the act was done.

Exclusion of certain acts

 (2) If the act is the grant of a pastoral lease or an agricultural lease to which paragraph 15(1)(a) applies, this section does not apply to the act.

Effect on sections 15 and 22B

 (3) If this section applies to the act, sections 15 and 22B do not apply to the act.