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Editors --- "National Parks and Wildlife Amendment - (Aboriginal Ownership) Act 1996 - Digest" [1998] AUIndigLawRpr 2; (1998) 3(1) Australian Indigenous Law Reporter 67

National Parks and Wildlife Amendment
(Aboriginal Ownership) Act 1996

In December,1996, the New South Wales Parliament unanimously passed legislation amending the National Parks and Wildlife Act 1974 and the Aboriginal Land Rights Act 1983 to achieve the following objectives:

the return of certain lands of special cultural significance to the Aboriginal community;
to provide, through a Board of Management, for the Aboriginal community to have principal responsibility for the management of those lands, in co-operation with the National Parks and Wildlife Service; and
to retain the status of those lands as national parks, nature reserves, historic sites, etc with associated rights of access and enjoyment of them by the Australian community.

These Government objectives have been achieved in the National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996, the key provisions of which are outlined below.

National Parks and Wildlife Act (NPW Act) Amendments

Lands of cultural significance to Aboriginals

Schedule 14 lists specific areas that the Parliament recognises as being significant to Aboriginals, and has approved for the transfer of ownership and joint management provisions of the Act to apply.

Schedule 14 -- Lands of cultural significance to Aboriginals

(Sections 71D (2), 71U, 71AW and 71BM)

Jervis Bay National Park
Mungo National Park
Mootwingee Historic Site, Mootwingee National Park and Coturaundee Nature Reserve
Mount Grenfell Historic Site
Mount Yarrowyck Nature Reserve

Negotiation Panels

Division 2, comprising ss. 71E to 71L provide an appropriate mechanism under which negotiations can proceed prior to the formal identification of Aboriginal owners.

Division 2 Negotiations for lease

71E Application of Division

This Division applies to and in respect of Schedule 14 lands and ALR Act lands.

71F Purpose of negotiations

(1) Negotiations under this Division are to be conducted for 2 purposes.

(2) Firstly, so far as Schedule 14 lands are concerned, negotiations are to be conducted to determine whether one or more Local Aboriginal Land Councils or the New South Wales Aboriginal Land Council wishes to have the present reservation or dedication of lands revoked so that the lands may be vested, subject to native title, in the Aboriginal Land Council or Councils in return for:

(a) a lease of the lands from the Aboriginal Land Council or Councils to the Minister, and
(b) the reservation or dedication of the lands in accordance with this Part.

(3) So far as lands that are the subject of a claim referred to in s. 36A of the Aboriginal Land Rights Act 1983 are concerned, negotiations are to be conducted with the Aboriginal Land Council or Councils that have claimed the lands under that Act to determine whether the Aboriginal Land Council or Councils are agreeable, if the claim is granted, to the lease of the lands to the Minister and the reservation or dedication of the lands in accordance with this Part.

(4) Secondly, if negotiations under subs. (2) or (3) result in an affirmative response, the negotiations are to continue with a view to settling the provisions of the proposed lease between the Aboriginal Land Council or Councils concerned and the Minister.

71G Selection of representatives for negotiations before Aboriginal owners identified

(1) This section applies if, at the time negotiations under this Division commence, Aboriginal owners of the lands that are the subject of the negotiations have not been identified.

(2) The Minister administering the Aboriginal Land Rights Act 1983 may, for the purposes of the conduct of negotiations under this Division in circumstances referred to in subs. (1), appoint a negotiating panel from Aboriginals to represent Aboriginals who, in the Minister's opinion, have a cultural association with the lands concerned.

(3) The Minister may, for the purposes of making appointments to the panel, consult with any other person or body (including any group formed by Aboriginals) that may, in the Minister's opinion, assist the Minister to ensure that the panel is appropriately constituted.

71H Selection of representatives for negotiations after Aboriginal owners identified

(1) This section applies if, at the time negotiations under this Division commence, the Minister administering the Aboriginal Land Rights Act 1983 is, after consulting the Registrar, satisfied a sufficient number of Aboriginal owners of the lands concerned has been identified to enable that Minister to select a negotiating panel from their number that will adequately represent the wishes of Aboriginals who have a cultural association with the lands.

(2) The Minister administering the Aboriginal Land Rights Act 1983 may, for the purposes of the conduct of negotiations under this Division in circumstances referred to in subs. (1), and after consulting the Aboriginal owners of the lands concerned or any group representing them concerning nominees to the negotiating panel, appoint a negotiating panel from the Aboriginal owners to represent Aboriginals who have a cultural association with the lands concerned.

(3) The Minister may, for the purposes of making appointments to the panel, consult with any other person or body (including any group formed by Aboriginals) that, in the Minister's opinion, may assist the Minister to ensure that the panel is appropriately constituted.

71I Role of Aboriginal negotiating panel

The role of an Aboriginal negotiating panel is:

(a) to participate in negotiations with the Minister and one or more Aboriginal Land Councils for the purposes of this Division, and
(b) to provide the Minister with advice as to the cultural significance to Aboriginals of any ALR Act lands that are the subject of negotiations under this Part, and
(c) to recommend a name for any lands to be reserved or dedicated pursuant to this Part as a result of the negotiations.

71J Minister may negotiate with Aboriginal negotiating panel and Aboriginal Land Councils

(1) The Minister may enter into negotiations for the purposes of this Division with an Aboriginal negotiating panel appointed in accordance with this Division and:

(a) one or more Local Aboriginal Land Councils whose members have a cultural association with Schedule 14 lands, or
(b) the New South Wales Aboriginal Land Council on behalf of one or more Local Aboriginal Land Councils referred to in para. (a), or
(c) the New South Wales Aboriginal Land Council on its own behalf, or
(d) one or more Aboriginal Land Councils that have made a claim for lands to which s. 36A of the Aboriginal Land Rights Act 1983 applies.

(2) The Minister may enter into negotiations with one Local Aboriginal Land Council whose members have a cultural association with Schedule 14 lands with which members of one or more other Local Aboriginal Land Councils also have a cultural association only if:

(a) the members of each of those Councils, and
(b) the Aboriginal negotiating panel, consent to the Minister negotiating with that Local Aboriginal Land Council.

71K Referral of disagreements between Aboriginal negotiating panel and Aboriginal Land Councils to mediation

(1) Any disagreement between an Aboriginal negotiating panel and an Aboriginal Land Council or Councils concerning negotiations under this Division that cannot be resolved otherwise is to be referred to a mediator selected by, and acceptable to, the Aboriginal negotiating panel and the Aboriginal Land Council or Councils for resolution.

(2) The Minister may decline to proceed with the negotiations until the disagreement has been resolved.

(3) The Aboriginal negotiating panel and the Aboriginal Land Council or Councils concerned are to be jointly responsible for payment of the costs of the mediation.

(4) The regulations may make provision for or with respect to the mediation of disagreements under this section including the exoneration of mediators from liability.

71L Preference to vesting in Local Aboriginal Land Council Schedule 14 lands

If both a Local Aboriginal Land Council or Councils and the New South Wales Aboriginal Land Council on its own behalf indicate that they wish Schedule 14 lands to be vested in them, the Minister is to give preference with respect to the vesting:

(a) if the Minister is satisfied, after consulting the Registrar, that sufficient Aboriginal owners of the lands have been identified to adequately represent the wishes of Aboriginals who have a cultural association with the lands to the wishes of the Aboriginal owners, or
(b) if Aboriginal owners of the lands have not been so identified to the wishes of the Local Aboriginal Land Council or Councils.

Lease Agreements

Section 71AD specifies terms that lease agreements under the Act must include.

71AD Matters to be covered in lease between Aboriginal Land Council and Minister

(1) A lease of lands under this Part must make provision for the following:

(a) the leasing of the whole of the lands vested in the Aboriginal Land Council or Councils to the Minister, subject to native title,
(b) a term of at least 30 years,
(c) the renewal of the lease for a further term of at least 30 years, with no limitation on the number of times the lease may be so renewed, provided that each party consents to the renewal,
(d) the manner in which the lease is to be renewed,
(e) the replacement of the lease, in accordance with this Part, with a new lease,
(f) an acknowledgement that the care, control and management of the lands is to be vested in a board of management established under this Part,
(g) an acknowledgement that the Aboriginal Land Council or Councils in which the lands are vested hold the lands on behalf of the Aboriginal owners of the lands,
(h) an acknowledgement that the Service and the officers, employees and contractors of the Minister, the Director-General and the Service are (subject to any plan of management in force with respect to the lands and to any directions given and supervision and oversight exercised by the board of management for the lands) entitled to exercise on and with respect to the lands any power, authority, duty or function conferred or imposed on any one or more of them by or under this or any other Act,
(i) an acknowledgement that the Aboriginal owners of the lands, and any other Aboriginals who have the consent of the Aboriginal owner board members, are entitled (subject to this and any other Act applying to the lands and any plan of management in force with respect to the lands) to enter and use the lands for hunting or fishing for, or the gathering of, traditional foods for domestic purposes and for ceremonial and cultural purposes to the extent that that entry or use is in accordance with the tradition of the Aboriginal owners,
(j) an acknowledgement that the Aboriginal Land Council or Councils in which the lands are vested and their employees, contractors and agents must comply with the provisions of this and any other Act applying to the lands, the regulations and any plan of management in force with respect to the lands, including provisions concerning the protection of animals, trees, timber, plants, flowers and vegetation,
(k) an acknowledgement that the lease is subject to any existing interest within the meaning of s. 39, any licence issued under Part 9, any lease, licence, franchise or easement granted under Part 12 and any authority or consent issued under this Act or the regulations affecting the lands, or any part of the lands, that is current on the date on which the lands are vested in the Aboriginal Land Council or Councils,
(l) the grant, extension or extinguishment of any interest, licence, lease, franchise, easement, authority or consent of a kind referred to in para. (k) subject to the requirements of this Act and, in the case of an extension or extinguishment, to any instrument under which the interest, licence, lease, franchise, easement, authority or consent was granted,
(m) an acknowledgement that the public generally has (subject to any plan of management in force with respect to the lands) a right of access to the lands in accordance with this Act and the regulations,
(n) a term acknowledging that the lands, or any part of the lands, may not be the subject of any sale, exchange, disposal or mortgage and providing that, to the extent to which the lands may otherwise be dealt with, any such dealing must be only with the prior written consent of the Minister.

(2) A lease under this Part must also make provision for the following:

(a) a requirement that the Minister consult with the Aboriginal Land Council or Councils in which the lands are vested before the making, amending or repealing of any regulations in respect of the lands,
(b) a requirement that consultations concerning the operation of the lease are to involve the Director-General and the board of management for the lands,
(c) the compliance by the parties to the lease with any requirements that arise because the lands are, or a part of the lands is, situated in an area listed as an item of cultural heritage or natural heritage of outstanding universal value in accordance with:

(i) the World Heritage Properties Conservation Act 1983 of the Commonwealth, and
(ii) the Convention for the Protection of the World Cultural and Natural Heritage adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organisation, being the convention a copy of the English text of which is set out in the Schedule to the Commonwealth Act referred to in subpara. (i).

(3) As a condition of a lease under this Part, the Minister must undertake to use the Minister's best endeavours to implement the Aboriginal Employment and Training Plan 1991 - 1996 published by the National Parks and Wildlife Service in October 1991 or any plan replacing that Plan and, in particular, any timetable set out in such a plan. The Minister must report to Parliament from time to time on progress achieved in implementing any such plan.
(4) The lease may make provision for such other matters, not inconsistent with this Act or the regulations, as the Minister and the Aboriginal Land Council or Councils consider appropriate.

Rent

Section 71AE specifies the payment of rent, and the process associated with the determination of the amount of rent to be payed, as compensation to Aboriginal peoples for the loss of their full enjoyment of the land.

71AE Rent payable under lease

(1) The Minister is to pay rent under any lease entered into with an Aboriginal Land Council or Councils under this Part.

(2) All rent payable by virtue of this section is payable out of the Consolidated Fund, which, to the necessary extent, is appropriated accordingly.

(3) The rent is to be an amount, negotiated by the parties or otherwise fixed in accordance with this section, that compensates the Aboriginal Land Council or Councils for the fact that it or they do not have the full use and enjoyment of the lands the subject of the lease.

(4) In negotiating the rent, the parties are to have regard to the following matters:

(a) the nature, size and location of the lands concerned and the nature of the infrastructure and improvements, if any, on the lands,
(b) the nature of the ownership rights in the lands that the Aboriginal Land Council or Councils possess,
(c) the provisions of this Act and the lease relating to the lands,
(d) the extent to which the cultural significance of the lands to Aboriginal persons restricts the use that may be made of the lands under the lease,
(e) the arrangements contained in this Act and the lease for the care, control, management and development of the lands,
(f) the amount of rent payable under leases of lands adjoining or in the vicinity of the lands the subject of the lease,
(g) the amounts realised on recent sales of freehold or leasehold land adjoining or in the vicinity of the lands the subject of the lease.

(5) If the parties are unable to agree on the rent to be paid, the matter is to be referred to a mediator, experienced in valuation matters, selected by, and acceptable to, the Minister and the Aboriginal Land Council or Councils.

(6) The regulations may make provision for and with respect to the mediation of a matter under this section including the remuneration of mediators and the exoneration of mediators from liability.

(7) If the mediator is unable to resolve the matter within a reasonable period, the Minister may request the Valuer-General to fix the rent to be paid.

(8) The Valuer-General, in fixing the rent, is to have regard to the matters referred to in subs. (4) and any other matters that the Valuer-General notifies to the parties and considers to be relevant. The decision of the Valuer-General as to the rent is final.

(9) The rent is payable by the Minister, on annual rests, to the credit of the separate account in the Fund referred to in s. 138 (1B) for payment out in accordance with s. 139 (5).

Plans of Management

Section 72 outlines the requirements and responsibilities for the development of plans of management for Schedule 14 parks and reserves and the subsequent requirement for management of those parks and reserves to be in accord with approved plans of management.

Section 72 Plans of management

Insert before s. 72 (2):

(1C) A plan of management for lands reserved or dedicated under Part 4A is to be prepared by the board of management for the lands concerned in consultation with the Director-General.

(1D) If a part or parts only of lands listed in Schedule 14 are reserved or dedicated under Part 4A:

(a) the Director-General may prepare a separate plan of management for the part or parts of the lands that are not so reserved or dedicated in accordance with this Part, or
(b) the Director-General and the board of management may agree that the plan of management prepared for the lands reserved or dedicated under Part 4A should extend and apply to the lands that are not so reserved or dedicated in which event the provisions of this Part applying to the preparation of plans of management by boards of management apply to the plan.

(1E) Subs. (1C) and (1D) do not require a plan of management to be prepared if an existing plan of management is in force when the lands are reserved or dedicated under Part 4A. However, any such existing plan, in so far as it relates to lands reserved or dedicated under Part 4A, must be reviewed by the board of management for the lands concerned within 2 years after the lands are so reserved or dedicated and may be amended, altered or cancelled in accordance with this section.

(1F) Without limiting subs. (1) (c), in the case of lands for which a plan of management is not in force when the lands are reserved or dedicated under Part 4A, a plan of management is to be prepared by the board of management for the lands within 2 years after that reservation or dedication.

(1G) After a plan of management has been prepared by a board of management, the board must give notice in a form approved by the Minister that the plan of management has been prepared and must, in that notice:

(a) specify the address where copies of the plan of management may be inspected, and
(b) specify the address to which representations in connection with the plan of management may be forwarded.

(1H) Any person interested may, within 1 month or such longer period as may be specified in the notice, make representations to the board of management in connection with the plan of management.

(1I) The board of management must, on the expiration of the period referred to in subs. (1H), refer the plan of management, and any representations forwarded to the board of management, to the Council for its consideration and advice.

(1J) The board of management must then submit the plan of management to the Minister together with any comments or suggestions of the Council.

(1K) The Minister is to consider the comments and suggestions of the Council before adopting the plan of management.

(1L) The Minister may adopt the plan of management without alteration or with such alterations as the Minister thinks fit or may refer it back to the board of management and the Council for further consideration.

(1M) The Minister may, on the recommendation of the board of management for lands reserved or dedicated under Part 4A:

(a) amend or alter the plan of management for the lands from time to time, or
(b) cancel the plan, or
(c) cancel the plan and substitute a new plan.

(1N) The provisions of subs. (2) and (4) and s. 74 apply to and in respect of an amendment or alteration referred to in subs. (1M) in the same way as they apply to or in respect of the plan of management for lands reserved or dedicated under Part 4A and as if the reference in s. 74 (2) to the Director-General was a reference to the board of management.

Vesting and Reservation of Schedule 14 Lands

Sections 71O to 71Q prescribe matters that continue to apply once leasing agreements and title transfer of the lands has occurred.

71O Vesting and reservation or dedication of Schedule 14 lands

(1) This section applies if:

(a) no change in the classification of the Schedule 14 lands to which negotiations relate is proposed, or
(b) no resolution disallowing a notification concerning a change in the classification of the Schedule 14 lands is or can be passed.

(2) On completion of negotiations concerning the Schedule 14 lands and preparation of a draft lease in respect of those lands that is acceptable to, and has been executed in escrow by, the Minister and the Aboriginal Land Council or Councils concerned, the Governor may, by proclamation published in the Gazette:

(a) revoke the existing reservation or the dedication under this Act of the lands that are the subject of the proposed lease, and
(b) vest those lands in the Aboriginal Land Council or Councils that are to lease the lands to the Minister (and, if more than one, as joint tenants (without the benefit of survivorship)), subject to the following:

(i) any native title rights and interests that exist in relation to the lands concerned,
(ii) any existing interest within the meaning of s. 39,
(iii) any licence issued under Part 9,
(iv) any lease, licence, franchise or easement granted under Part 12,
(v) any authority or consent issued under this Act or the regulations, and

(c) reserve or dedicate those lands, with the appropriate classification, under this Act, subject to any matter referred to in para. (b) (i) (v).

71P Effect of publication of proclamation

(1) On publication of the proclamation, the existing reservation or dedication under this Act of the lands described in the proclamation is revoked. This subsection has effect despite anything else in this Act.

(2) On publication of the proclamation, the lands described in the proclamation vest, by virtue of the proclamation and the operation of this section, in the Aboriginal Land Council or Councils (and, if more than one, as joint tenants (without the benefit of survivorship)) named as lessor or lessors in the lease for an estate in fee simple without the necessity for any further assurance, but subject to the following:

(a) any native title rights and interests that exist in relation to the lands concerned,
(b) any existing interest within the meaning of s. 39,
(c) any licence issued under Part 9,
(d) any lease, licence, franchise or easement granted under Part 12,
(e) any authority or consent issued under this Act or the regulations.

(3) On publication of the proclamation, the lease takes effect and is taken to have been executed on, and its term commences to run from, the date of publication of the proclamation.

(4) On publication of the proclamation, the lands described in the proclamation are, despite the fact that the lands are vested in the Aboriginal Land Council or Councils, reserved or dedicated, with the appropriate classification, under this Act in accordance with this Part, subject to any matter referred to in subs. (2) (a) (e).

71Q Certain other consequences of publication of proclamation

On publication of the proclamation:

(a) the Director-General continues, until the establishment of a board of management for the lands, to have the care, control and management of the lands and may exercise on and with respect to those lands any power, authority, duty or function conferred or imposed on the Director-General by or under this or any other Act, and
(b) the Service and the officers, employees and contractors of the Minister, the Director-General and the Service may (subject to any plan of management in force with respect to the lands and to any directions given and supervision and oversight exercised by the board of management for the lands) exercise on and with respect to those lands any power, authority, duty or function conferred or imposed on any one or more of them by or under this or any other Act, and
(c) any regulations that, immediately before that publication, applied to the lands continue to apply to the lands and may be amended and repealed accordingly, and
(d) any plan of management that, immediately before that publication, applied to the lands continues, subject to this Act, to apply to the lands and may be amended, altered or cancelled accordingly, and
(e) any existing interest (within the meaning of s. 39), any licence issued under Part 9, any lease, licence, franchise or easement granted under Part 12 and any authority or consent issued under this Act or the regulations that affect the lands, or any part of the lands, and that are current at the date of the proclamation continue to have effect and may be terminated or otherwise dealt with in accordance with this Act or the instrument under which they were granted, and
(f) any fee, rent or other sum that is payable under or with respect to any matter referred to in para. (e) is, despite any other requirement to the contrary, to be paid as required by s. 138, and
(g) any declaration made under Division 3 of Part 4 or under the Wilderness Act 1987 with respect to the lands, or any part of the lands, continues in force and may be varied or revoked accordingly.

Boards of Management

Sections 71AN to 71AP prescribe the composition, roles and functions of boards of management for the Schedule 14 parks and reserves.

71AN Boards of management

(1) There is to be a board of management for each area of Schedule 14 lands and ALR Act lands leased and reserved or dedicated under this Part. A board of management is to be established as soon as practicable after the lands are leased and reserved or dedicated.

(2) A board of management is to consist of at least 11, but no more than 13, members appointed by the Minister with the concurrence of the Minister administering the Aboriginal Land Rights Act 1983.

(3) Of the members:

(a) the majority are to be Aboriginal owners of the lands concerned nominated by themselves or by another Aboriginal owner of the lands with the consent of the nominee, and
(b) one is to be a person appointed from nominees of a Local Aboriginal Land Council or Councils in whose area or areas the whole or part of the lands are located, and
(c) one is to be a person appointed to represent the local council or councils (if any) whose area or areas comprise, or adjoin, the lands, and
(d) one is to be an officer of the Service for the time being nominated by the Director-General, and
(e) one is to be a person appointed from a panel of persons nominated by a group concerned in the conservation of the region in which the lands are located to represent conservation interests, and
(f) one is to be a person appointed on the nomination of owners, lessees and occupiers of land adjoining or in the vicinity of the lands to represent those owners, lessees and occupiers.

(4) The Minister, in appointing Aboriginal owners under subs. (3) (a), is to have regard to such matters as the gender of the nominees and their cultural affiliations and family groupings in an endeavour to ensure that a representative group of members is appointed.

(5) The members of the board of management are to appoint one of the persons referred to in subs. (3) (a) as the chairperson of the board of management.

(6) A meeting of a board of management has a quorum only if a majority of the members present are persons referred to in subs. (3) (a).

(7) The regulations may make provision with respect to the constitution and procedure of a board of management including the declaration of pecuniary interests by members.

71AO Functions of boards of management

(1) A board of management for lands to which this Division applies has the following functions:

(a) the care, control and management of the lands,
(b) the preparation of plans of management for the lands,
(c) the supervision of payments from the Fund with respect to the lands.

(2) Without limiting subs. (1), a board of management has the function of considering proposals for the carrying out, by Aboriginal owners or other Aboriginal persons, of cultural activities (such as hunting and gathering) within the lands and of approving, or refusing to approve, the carrying out of those activities.

(3) A board of management must exercise its functions in accordance with any plan of management in force with respect to the lands for which it is established.

(4) In the exercise of its functions, a board of management is subject to the control and direction of the Minister.

(5) Despite subs. (4), the Minister may not give directions to a board of management in relation to:

(a) the contents of any report, advice, information or recommendation that is to be or may be made or given by the board, or
(b) any decision of the board, that is not inconsistent with this Act and the plan of management for the lands for which it was established, relating to the care, control and management of Aboriginal heritage and culture within the lands.

(6) In the exercise of its functions with respect to the care, control and management of lands for which no plan of management is in force, a board of management is to consult with and have regard to the advice of the Director-General.

(7) In this section:

exercise a function includes perform a duty.
function includes a power, authority or duty.

71AP Term of office of board members

Subject to the regulations, a member of a board of management holds office for such period (being not less than 4 years and not more than 6 years) as may be specified in the instrument of appointment of the member, but is eligible (if otherwise qualified) for re-appointment.

Arbitration of Disputes and Disagreements

Section 71BJ sets out the procedures for the arbitration of disputes.

71BJ Arbitration of disputes

(1) Any dispute between:

(a) the Director-General and a board of management, or
(b) the Minister or Director-General and an Aboriginal Land Council or Councils, concerning matters arising under this Part (other than matters in respect of which a direction has been given to the Director-General by a board of management in accordance with this Part) is to be arbitrated by a panel of 3 arbitrators.

(2) One of the 3 arbitrators is to be appointed by the Director-General, one by the board of management for the lands concerned and the third by agreement between the first 2 arbitrators or, failing such agreement, by the Chief Judge of the Land and Environment Court.

(3) The procedures to apply to an arbitration are to be determined by the panel of arbitrators.

(4) In conducting an arbitration, the arbitrators are to have regard to:

(a) the preservation of the rights and interests of native title holders, and
(b) the views on the subject of the dispute expressed by the Aboriginal owner board members, in relation to the lands concerned.

(5) The regulations may make provision with respect to the arbitration of disputes under this section including as to the fixing and payment of the remuneration and expenses of the arbitrators.

Nomination of additional Areas to Schedule 14

Division 7, comprising ss. 71AR to 71AW set out the procedures for nominating further NPW Act lands for inclusion onto Schedule 14.

Division 7 Addition of lands to Schedule 14

71AR Application of Division

This Division applies to and in respect of lands proposed for addition to Schedule 14 only.

71AS Proposals for additions to Schedule 14

(1) Any person or body (including a statutory authority) may submit to the Director-General a written proposal that lands reserved or dedicated under this Act be identified as having cultural significance to Aboriginals and listed in Schedule 14.

(2) A copy of the proposal is to be given to the Registrar who must notify the following persons and bodies of the proposal:

(a) the New South Wales Aboriginal Land Council, and
(b) the Local Aboriginal Land Council or Councils in whose area or areas the lands the subject of the proposal are located, and
(c) the Aboriginal owners of the lands concerned (if they have been identified), and
(d) any body representing Aboriginals that the Registrar considers to be relevant.

(3) The Registrar is to provide the Director-General with the names of the persons and bodies that the Registrar has notified of the proposal.

71AT Assessment of proposals

(1) The Director-General must, after receiving a proposal, make an assessment of the cultural significance to Aboriginals of the lands referred to in the proposal and make a report to the Minister in relation to the proposal.

(2) The Director-General is to consult with:

(a) the person or body that submitted the proposal, and
(b) the persons and bodies notified of the proposal by the Registrar, and
(c) any other person or body that the Director-General considers should be consulted, in relation to the making of the assessment and report.

71AU Report to Minister

(1) In preparing a report for the Minister, the Director-General is to consider the following:

(a) whether the lands concerned contain places of spiritual or mythological importance in accordance with Aboriginal custom or lore,
(b) whether the lands contain places used for the conduct of ceremonial activities by Aboriginals, including areas recognised for gender specific cultural activities,
(c) whether the lands contain areas that are significant for their association with Aboriginal life after occupation of the area in which the lands are situated by persons of European extraction.

(2) The Director-General's report is to make comment on the following matters in relation to the lands concerned:

(a) whether Aboriginal burials or remains, or both, are present,
(b) the rarity of types of Aboriginal sites and objects on the lands in the context of the cultural area in which the lands are located,
(c) the diversity of Aboriginal sites and objects on the lands,
(d) the antiquity of Aboriginal sites and objects on the lands,
(e) whether the lands have been listed:

(i) in the Register of the National Estate kept in pursuance of the Australian Heritage Commission Act 1975 of the Commonwealth, or
(ii) as an item of cultural heritage of outstanding universal value in accordance with the World Heritage Properties Conservation Act 1983 of the Commonwealth and the Convention for the Protection of the World Cultural and Natural Heritage that is referred to in s. 71AD (2) (c) (ii), on the basis, or partly on the basis, of their cultural significance to Aboriginals.

(3) The Director-General must also indicate in the report whether any disagreement exists among the persons or bodies consulted by the Director-General regarding the proposal as to whether the lands are of cultural significance to Aboriginals or should be listed in Schedule 14, or both.

(4) The Director-General may include any other matters in the report that the Director-General considers to be relevant.

71AV Consideration of report by Minister

(1) On receiving a report from the Director-General, the Minister is to consider whether the lands concerned are of cultural significance to Aboriginals and, if so, whether the Minister should recommend to the Governor that the lands be listed in Schedule 14.

(2) The Minister is not to make a recommendation that the lands be listed in Schedule 14 unless the Minister is satisfied that the cultural significance of the lands to Aboriginals is at least equivalent to that of the lands already listed in the Schedule.

71AW Listing of additional lands in Schedule 14

(1) Additional lands may be listed in Schedule 14 only by an Act of Parliament.

(2) If Parliament approves of the listing of lands in Schedule 14 following the making of a recommendation by the Minister to the Governor that the lands be so listed, the lands may be dealt with in accordance with the provisions of this Part that apply to Schedule 14 lands and, in particular, with the provisions of Divisions 2, 3, 5 and 6.

Cultural significance

Section 71D outlines the process associated with assessing the cultural significance of lands to Aboriginals, that have been nominated for inclusion on Schedule 14.

71D Recognition of cultural significance of certain lands to Aboriginals

(1) Parliament recognises that certain lands reserved or dedicated under this Act are of cultural significance to Aboriginals. Land is of cultural significance to Aboriginals if the land is significant in terms of the traditions, observances, customs, beliefs or history of Aboriginals.

(2) The lands listed in Schedule 14 are identified as being of cultural significance to Aboriginals.

Hunting and Gathering

Sections 45, 56, 57, 58H, 58I, 58Q, and 58R amend existing provisions of the NPW Act to facilitate Aboriginal hunting and gathering practices on Schedule 14 lands.

45 Provisions respecting animals in parks and sites

Insert after s. 45 (5):

(6) This section does not prevent:

(a) an Aboriginal owner on whose behalf the lands of a national park or historic site are held by one or more Aboriginal Land Councils in accordance with Part 4A, or
(b) any other Aboriginal who has the consent of the Aboriginal owner board members, from harming an animal within the park or site for domestic purposes or for ceremonial or cultural purposes (other than an animal of a threatened species or an animal protected by the plan of management for the park or site).

56 Provisions respecting animals in nature reserves

Insert after s. 56 (6):