Queensland Consolidated Acts

LAND ACT 1994 - SCHEDULE 3

SCHEDULE 3 – Requirements for approved agreements

Part 1 - Indigenous access and use agreements

1 The lease affected by an indigenous access and use agreement must be a lease for—

(a) rural leasehold land; and

(b) a term, including any extension of the lease that has been or may be granted under section 155A or 155B , of 20 or more years but no more than 50 years; and

(c) lease land that is 1,000ha or more.

2 Native title must not have been extinguished for the land the subject of the lease.

3 The parties to an indigenous access and use agreement must be—

(a) the lessee; and

(b) the determined native title holders or registered native title claimants for the area that is subject to the agreement.

4 An indigenous access and use agreement—

(a) must not provide for the assigning, surrendering or extinguishing of native title over any part of the lease land; and

(b) must not provide for the validation of future acts within the meaning of the Native Title Act 1993 (Cwlth) , section 233 ; and

(c) must not provide for the burial of human remains on the lease land by a party to the agreement mentioned in item 3(b), unless the party—

(i) is a determined native title holder; and

(ii) has the prior consent of the lessee and the chief executive; and

(d) must not purport to prevent or be inconsistent with—

(i) the establishment of a nature refuge under the Nature Conservation Act 1992 ; or

(ii) a covenant, of a type mentioned in section 373A (5) (b) if the covenantee is the State, being registered; and

(e) must not be for a term less than the unexpired term of the lease affected by the agreement, including any extension of the lease that may be granted under section 155A or 155B .

5 The area that is subject to an indigenous access and use agreement must include—

(a) if the agreement requires the lessee to withdraw from a native title claim made by another party to the agreement—

(i) all parts of the lease land relevant to the other party’s native title claim; and

(ii) any areas over which native title will be extinguished or the extinguished areas under a determination of native title; or

(b) otherwise—all, or the part, of the lease land that is within the other party’s determined or registered native title claim area under the Native Title Act 1993 (Cwlth) .

6 If native title claim areas overlap on the lease land, an indigenous access and use agreement for the lease land must exclude that part of the lease land where one native title claim overlaps another unless—

(a) the agreement is entered into on behalf of more than one native title claim group; and

(b) the native title parties for the claims have agreed that the overlapping claim area is shared country for the purposes of the agreement; and

(c) the shared country is clearly described and identified on a map included in the agreement; and

(d) the nature and extent of the native title for the shared country, and the responsibilities of the native title parties for the shared country, are stated in the agreement.

7 If a party to an indigenous access and use agreement is a registered native title claimant for the area the subject of the agreement and the agreement includes conditions relating to a lessee withdrawing from that party’s native title claim, the agreement must include conditions as follows for the purpose of a determination of native title—

(a) the burial of human remains by the registered native title claimant must not take place on the lease land without the prior consent of the lessee and the chief executive;

(b) the lessee’s rights and interests under the lease and the indigenous access and use agreement must be included as one of the interests under the determination;

(c) the areas identified as permanent exclusion areas under the indigenous access and use agreement must be areas in which native title is, subject to the determination, validly extinguished.

Part 2 - Indigenous land use agreements

1 The lease affected by an indigenous land use agreement must be a lease for—

(a) rural leasehold land; and

(b) a term, including any extension of the lease that has been or may be granted under section 155A , 155B or 155BA , of 20 or more years but no more than 75 years; and

(c) lease land that is 1,000ha or more.

2 Native title must not have been extinguished for the land the subject of the lease.

3 The parties to an indigenous land use agreement must be—

(a) the lessee; and

(b) the native title party for the part of the lease land subject to the agreement.

4 An indigenous land use agreement—

(a) must not provide for the assigning, surrendering or extinguishing of native title over any part of the lease land; and

(b) must allow the native title party to carry out the following activities on the lease land—

(i) activities for traditional purposes of the native title party;

Examples of activities for subparagraph (i)—

• camping, fishing, gathering or hunting

• performing rites or other ceremonies

• visiting sites of significance

(ii) activities incidental to an activity mentioned in subparagraph (i) ; and

Examples of activities for subparagraph (ii)—

• controlling pests

• teaching rites or other ceremonies

• preserving sites of significance

(c) must not provide for the burial of human remains on lease land by the native title party unless the native title party has the prior consent of the lessee and the chief executive; and

(d) must not purport to prevent or be inconsistent with—

(i) the establishment of a nature refuge under the Nature Conservation Act 1992 ; or

(ii) a covenant, of a type mentioned in section 373A (5) (b) if the covenantee is the State, being registered; and

(e) must not be for a term less than the unexpired term of the lease affected by the agreement, including any extension of the lease that may be granted under section 155A , 155B or 155BA .

5 The area that is subject to an indigenous land use agreement must include—

(a) if the agreement requires the lessee to withdraw from a native title claim made by the native title party—

(i) all parts of the lease land relevant to that party’s native title claim; and

(ii) any areas over which native title will be extinguished or the extinguished areas under a determination of native title; or

(b) otherwise—all, or the part, of the lease land that is within the native title party’s determined or registered native title claim area under the Native Title Act 1993 (Cwlth) .

6 If native title claim areas overlap on the lease land, an indigenous land use agreement for the lease land must exclude that part of the lease land where one native title claim overlaps another unless—

(a) the agreement is entered into on behalf of more than one native title claim group; and

(b) the native title parties for the claims have agreed that the overlapping claim area is shared country for the purposes of the agreement; and

(c) the shared country is clearly described and identified on a map included in the agreement; and

(d) the nature and extent of the native title for the shared country, and the responsibilities of the native title parties for the shared country, are expressed in the agreement.

7 If an indigenous land use agreement includes conditions relating to a lessee withdrawing from the native title party’s native title claim, the agreement must include conditions as follows for the purpose of a determination of native title—

(a) burial of human remains by the native title party must not take place on the lease land without the prior consent of the lessee and the chief executive;

(b) the lessee’s rights and interests under the lease and the indigenous land use agreement must be included as one of the interests under a determination;

(c) the areas identified as permanent exclusion areas under the indigenous land use agreement are to be areas in which native title is, subject to the determination, validly extinguished.