23BPrevious exclusive possession act

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.