Commonwealth Consolidated Acts Commonwealth Consolidated ActsWhen section applies
(1) This section applies if:
(a) a claimant application or a revised native title determination application is made in relation to an area that is, or is part of, a park area (see subsection (3)); and
(b) the operation of this section in relation to an area (the agreement area ) that is in an onshore place, and comprises the whole or a part of the park area, has been agreed to in writing by:
(i) any registered native title body corporate concerned or the applicant for any native title claim group concerned; and
(ii) whichever of the Commonwealth, the State or the Territory by or under whose law the park area was set aside, or the interest over the park area was granted or vested, as mentioned in subsection (3); and
(c) the agreement area is:
(i) Crown land; or
(ii) covered by a freehold estate held by the Crown, or a statutory authority of the Crown, in any of its capacities; and
(d) none of sections 47, 47A and 47B applies in relation to the agreement area.
(2) For the purposes of paragraph (1)(c), it is immaterial whether the land is:
(a) subject to a lease or licence; or
(b) covered by a dedication, reservation, proclamation, condition or declaration made or conferred by the Commonwealth, a State or a Territory; or
(c) covered by legislation of the Commonwealth, a State or a Territory under which the whole or a part of the land is to be used for a public purpose or public purposes; or
(d) held on trust for the benefit of another person; or
(e) subject to native title.
Meaning of park area
(3) A park area means an area (such as a national, State or Territory park):
(a) that is set aside; or
(b) over which an interest is granted or vested;
by or under a law of the Commonwealth, a State or a Territory for the purpose of, or purposes that include, preserving the natural environment of the area, whether that setting aside, granting or vesting resulted from a dedication, reservation, proclamation, condition, declaration, vesting in trustees or otherwise.
Public works
(4) An agreement referred to in paragraph (1)(b) may include a statement by the Commonwealth, or the State or Territory concerned, that it agrees that the extinguishing effect of any of its relevant public works (see subsection (11)) in the agreement area is to be disregarded.
(5) If the agreement area contains one or more relevant public works, the application mentioned in paragraph (1)(a) may also be the subject of an agreement in writing between:
(a) any registered native title body corporate concerned or the applicant for any native title claim group concerned; and
(b) the Commonwealth, the State or the Territory to which the relevant public work relates (see subsection (11));
that any extinguishment of native title by the construction or establishment of the relevant public work is to be disregarded.
Notice and time for comment
(6) Before making an agreement for the purposes of paragraph (1)(b) or subsection (5), the Commonwealth, or the State or Territory concerned, must:
(a) arrange for reasonable notification of the proposed agreement in the State or Territory in which the agreement area is located, whether on the internet, in a newspaper circulating generally in the State or Territory, on the radio or otherwise; and
(b) give interested persons an opportunity to comment on the proposed agreement.
The period for comment must be at least 3 months.
(7) The agreement must not be made before the end of the period for comment.
Prior extinguishment to be disregarded
(8) For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests in relation to the agreement area by any of the following acts must be disregarded:
(a) the setting aside, granting or vesting mentioned in subsection (3);
(b) the creation of any other prior interest in relation to the agreement area;
(c) if:
(i) the agreement under paragraph (1)(b) includes a statement of a kind mentioned in subsection (4); or
(ii) there is an agreement under subsection (5);
the construction or establishment of any relevant public works that are the subject of the agreement concerned.
Note: The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.
Effect of determination
(9) If the determination on the application is that native title rights and interests exist in the agreement area:
(a) the determination does not affect:
(i) the validity of the setting aside, granting or vesting; or
(ii) the validity of the creation of any other prior interest in relation to the agreement area; or
(iii) any interest of the Crown in any capacity, or of any statutory authority, or of any other person, in any public works on the land or waters concerned (whether or not a relevant public work that is the subject of an agreement), or access to such public works; or
(iv) any existing public access to the agreement area; and
(b) the non - extinguishment principle applies to the setting aside, granting or vesting or the creation of any other prior interest in relation to the agreement area.
Exclusion of Crown ownership of natural resources
(10) For the purposes of this section, a reference to the creation of an interest in relation to an area does not include a reference to the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity.
(11) In this section:
"Crown land" means:
(a) land that has not been alienated from the Crown in right of the Commonwealth, a State or a Territory by a grant of an estate in fee simple; or
(b) land that has been so alienated, but has been resumed by, or has reverted to or been acquired by, the Crown.
"relevant public work" , in relation to the Commonwealth, a State or a Territory, means a public work:
(a) constructed or established directly by the Commonwealth, the State or the Territory; or
(b) constructed or established by another person on behalf of the Commonwealth, the State or the Territory.