Commonwealth Consolidated Acts

NATIVE TITLE ACT 1993 - SECT 47B

When section applies

  (1)   This section applies if:

  (a)   a claimant application is made in relation to an area; and

  (b)   when the application is made, the area is not:

  (i)   covered by a freehold estate or a lease; or

  (ii)   covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or

  (iii)   subject to a resumption process (see paragraph   (5)(b)); and

  (c)   when the application is made, one or more members of the native title claim group occupy the area.

Prior extinguishment to be disregarded

  (2)   For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.

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

  (3)   If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

  (a)   the determination does not affect:

  (i)   the validity of the creation of any prior interest in relation to the area; or

  (ii)   any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and

  (b)   the non - extinguishment principle applies to the creation of any prior interest in relation to the area.

Renewals and extensions of leases

  (4)   For the purposes of paragraph   (1)(b), if, after a lease covering an area expires or is terminated, the lease is bona fide renewed, or its term is bona fide extended, the area is taken to be covered by the lease during the period between the expiry or termination and the renewal or extension.

Defined expressions

  (5)   For the purposes of this section:

  (a)   the creation of a prior interest in relation to an area does not include the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity; and

  (b)   an area is subject to a resumption process at a particular time (the test time ) if:

  (i)   all interests last existing in relation to the area before the test time were acquired, resumed or revoked by, or surrendered to, the Crown in any capacity; and

  (ii)   when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose; and

  (iii)   the Crown still had a bona fide intention of that kind in relation to the area at the test time.