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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Native Title (State Provisions) Bill 1999 CONTENTS Part 1 -- Preliminary 1.1. Short title 2 1.2. Commencement 2 1.3. Objects 3 1.4. Act binds the Crown 3 1.5. Interpretation 3 1.6. Performance of certain functions on behalf of Minister 6 1.7. Replacement of person as objector etc. 6 1.8. Objector ceasing to be a registered native title claimant 7 Part 2 -- Consultation procedures for alternative provision areas Division 1 -- Preliminary 2.1. Definitions 8 2.2. Request for determination under section 43A of the NTA 9 2.3. Transitional provisions 9 2.4. Object of this Part 9 Division 2 -- Relevant future acts and their validity 2.5. Acts to which this Part applies 10 2.6. Circumstances in which act is not valid 10 page i 70--2 Native Title (State Provisions) Bill 1999 Contents 2.7. Part 3 may be applied to a Part 2 act 12 2.8. Other statutory requirements not affected 12 Division 3 -- Notices and objections 2.9. Proponent where act relates to mining 13 2.10. Identification of proponents in other cases 13 2.11. Closing day for objections 14 2.12. Notification of acts 14 2.13. Further provision as to notices 14 2.14. Who gives notice 15 2.15. Prescribed provisions about notice 16 2.16. Right to object to doing of act 16 2.17. Requirements for objections 17 2.18. Time limit 17 2.19. Government party to notify the Commission of objections 18 2.20. Withdrawal of request etc. by proponent 18 2.21. Withdrawal of proposal by Government party 19 Division 4 -- Consultation and agreements 2.22. Meaning of "consultation parties" 19 2.23. Consultation 20 2.24. Involvement of Commission, including mediation 20 2.25. Withdrawal of objection 21 2.26. Agreement made by parties 21 Division 5 -- Recommendations of the Commission 2.27. Commission may notify intention to hear 21 2.28. Consultations may continue 22 2.29. Dismissal of objections 23 2.30. Time for making recommendation 23 2.31. No recommendation if agreement etc. 24 2.32. Making of recommendation 24 2.33. Criteria for making recommendations 25 2.34. Issues on which parties agree 25 2.35. Copy of recommendation to be given 26 2.36. Effect of recommendation 26 2.37. Effect of recommendation that specifies conditions 26 page ii Native Title (State Provisions) Bill 1999 Contents Division 6 -- Overruling of recommendations 2.38. Responsible Minister may overrule a recommendation 27 2.39. Determinations that responsible Minister may make 27 2.40. Consultation before making of determination 28 2.41. Ground on which determination may be made 29 2.42. Conditions in determination 30 2.43. Responsible Minister may declare intention not to overrule 30 Division 7 -- Applications 2.44. Definition 31 2.45. Form and contents of application 31 2.46. Material and fees to accompany applications 31 2.47. Application fee may be waived 31 Division 8 -- Judicial review 2.48. Application for review 31 2.49. Time limit for application 32 2.50. Procedure 33 2.51. Grounds on which application may be made 33 2.52. Powers of Court 33 2.53. Effect on other remedies 33 Part 3 -- Right to negotiate procedures for areas not covered by Part 2 Division 1 -- Preliminary 3.1. Request for determination under section 43(1)(b) of the NTA 34 3.2. Transitional provisions 34 3.3. Object of this Part 34 Division 2 -- Relevant future acts and their validity 3.4. Acts to which this Part applies 35 3.5. Circumstances in which act is not valid 35 3.6. Other statutory requirements not affected 37 Division 3 -- Notices and objections 3.7. Proponent where act relates to mining 37 3.8. Identification of proponents in other cases 38 page iii Native Title (State Provisions) Bill 1999 Contents 3.9. Closing day for objections 38 3.10. Notification of acts 39 3.11. Further provision as to notices 39 3.12. Notice may relate to 2 or more acts 41 3.13. Who gives notice 41 3.14. Prescribed provisions about notice 41 3.15. Right to object to doing of act 42 3.16. Requirements for objections 42 3.17. Time limit 42 3.18. Government party to notify the Commission of objections 43 3.19. Withdrawal of request etc. by proponent 43 3.20. Withdrawal of proposal by Government party 44 Division 4 -- Negotiations and agreements 3.21. Meaning of "negotiation parties" 44 3.22. Negotiations 45 3.23. Involvement of Commission, including mediation 47 3.24. Withdrawal of objection 47 3.25. Agreement made by parties 47 3.26. Commission's function in respect of an agreement 48 3.27. Effect of conditional agreement 48 Division 5 -- Determinations Subdivision 1 -- Ministerial determination where Commission determination unreasonably delayed 3.28. Responsible Minister may give Commission notice as to urgency 49 3.29. Responsible Minister may make determination 50 3.30. Grounds for making determination 51 3.31. Consultation with Commonwealth Minister 51 3.32. Notice and submissions etc. 51 3.33. Material etc. taken into account 53 3.34. Minister's power not limited 53 3.35. No duty to make determination 53 3.36. Conditions to have contractual effect 54 3.37. Copy of determination to be given 54 3.38. Copy of determination to be laid before Parliament 55 page iv Native Title (State Provisions) Bill 1999 Contents Subdivision 2 -- Determination by Commission 3.39. Commission may notify intention to hear 55 3.40. Negotiations may continue 57 3.41. Dismissal of objections 57 3.42. Time for making determination 57 3.43. No determination if agreement etc. 58 3.44. Making of determination 58 3.45. Criteria for making determinations 59 3.46. Issues on which parties agree 60 3.47. Determination may provide for issues to be resolved later 61 3.48. No reopening of certain issues previously decided 61 3.49. Copy of determination to be given 62 3.50. Effect of conditional determination 62 Division 6 -- Overruling of Commission's determination 3.51. Responsible Minister may overrule 63 3.52. Declarations that responsible Minister may make 63 3.53. Grounds on which declaration may be made 64 3.54. Conditions in declaration 65 3.55. Responsible Minister may declare intention not to overrule 65 Division 7 -- Applications 3.56. Definition 66 3.57. Form and contents of application 66 3.58. Material and fees to accompany applications 66 3.59. Application fee may be waived 66 Part 4 -- Consultation procedures for acts to which section 24MD(6B) of the NTA applies Division 1 -- Preliminary 4.1. Object of this Part 67 4.2. Acts to which this Part applies 67 4.3. Requirements to be satisfied before a Part 4 act is done 67 4.4. Other statutory requirements not affected 69 page v Native Title (State Provisions) Bill 1999 Contents Division 2 -- Notices and objections 4.5. Proponent where act relates to mining 69 4.6. Identification of proponents in other cases 69 4.7. Closing day for objections 70 4.8. Notification of acts by Government party 70 4.9. Further provision as to notices 71 4.10. Prescribed provisions about notice 71 4.11. Right to object to doing of act 72 4.12. Requirements for objections 72 4.13. Time limit 73 4.14. Government party to notify the Commission of objections 73 4.15. Withdrawal of request etc. by proponent 73 4.16. Withdrawal of proposal by Government party 74 Division 3 -- Consultation and agreements 4.17. Meaning of "consultation parties" 74 4.18. Consultation 75 4.19. Involvement of Commission, including mediation 75 4.20. Withdrawal of objection 76 4.21. Agreement made by parties 76 Division 4 -- Recommendations of the Commission 4.22. Commission may notify intention to hear 76 4.23. Consultations may continue 77 4.24. Dismissal of objections 78 4.25. Time for making recommendation 78 4.26. No recommendation if agreement etc. 78 4.27. Making of recommendation 79 4.28. Criteria for making recommendations 79 4.29. Issues on which parties agree 80 4.30. Copy of recommendation to be given 80 4.31. Effect of recommendation 80 4.32. Effect of recommendation that specifies conditions 80 Division 5 -- Overruling of recommendations 4.33. Responsible Minister may overrule a recommendation 81 4.34. Determinations that responsible Minister may make 81 4.35. Consultation before making of determination 82 page vi Native Title (State Provisions) Bill 1999 Contents 4.36. Ground on which determination may be made 83 4.37. Conditions in determination 84 4.38. Responsible Minister may declare intention not to overrule 84 Division 6 -- Applications 4.39. Definition 85 4.40. Form and contents of application 85 4.41. Material and fees to accompany applications 85 4.42. Application fee may be waived 85 Part 5 -- Provisions relating to compensation Division 1 -- Preliminary 5.1. Definition 86 Division 2 -- Determination of compensation 5.2. Commission to determine compensation for certain acts 86 5.3. Enforcement of order for compensation 88 Division 3 -- Principles to be applied in the determination of compensation 5.4. No multiple compensation for essentially same act 89 5.5. Compensation principles to be as for ordinary title 89 5.6. Compensation to be monetary 89 5.7. Requests for non-monetary compensation 89 Division 4 -- Determination of amounts to be held in trust and payment of those amounts 5.8. Conditions for payment of amounts to be held in trust 90 5.9. How amounts held in trust to be dealt with 91 5.10. Section 5.9(a) or (b) cases 92 5.11. Section 5.9(c) cases 92 5.12. Section 5.9(d) cases where monetary compensation 92 5.13. Section 5.9(d) cases where non-monetary compensation 93 5.14. Section 5.9(d) cases where no compensation 93 page vii Native Title (State Provisions) Bill 1999 Contents 5.15. Section 5.9(e) cases 94 5.16. Jurisdiction of the Commission under this Division 94 Part 6 -- Native Title Commission Division 1 -- Commission established 6.1. Establishment of Commission 95 6.2. Functions of Commission 95 6.3. Requirements for fairness etc. to be observed 95 6.4. Membership of the Commission 95 6.5. Eligibility for appointment as Chief Commissioner 96 6.6. Appointment of member of NNTT 96 6.7. Qualifications for appointment 96 6.8. Ordinary members, notice of proposed appointment 97 6.9. Administrative functions of Chief Commissioner 98 6.10. Authorization of Chief Commissioner for purposes of section 199F of the NTA 98 6.11. Delegation to members 98 6.12. Other provisions relating to members 98 Division 2 -- Staff of the Commission 6.13. Use of government staff etc. 99 6.14. Consultants 99 Division 3 -- Operation of Commission Subdivision 1 -- How Commission to be constituted 6.15. General position 100 6.16. Constitution of Commission for the performance of certain functions 100 6.17. Concurrent operations 101 Subdivision 2 -- Arrangement of business 6.18. Arrangement of business of the Commission 101 6.19. Unavailability of member 101 6.20. Completion of part-heard proceedings 102 Subdivision 3 -- Hearings 6.21. Commission to hold hearings 102 6.22. Commission may determine whether matters are to be grouped together 102 page viii Native Title (State Provisions) Bill 1999 Contents 6.23. Opportunity to make submissions 103 6.24. Questions to be decided by majority 103 6.25. Representation before Commission 103 6.26. Participation by telephone, etc. 103 6.27. Hearings normally to be public 103 Subdivision 4 -- Evidence and information 6.28. Evidence and findings of other bodies 104 6.29. Commission may prohibit disclosure of evidence 104 6.30. Power of Commission to summon 105 6.31. Power of Commission to take evidence 105 6.32. Power of the Commission to require answers 105 6.33. Commission may authorize another person to take evidence 106 6.34. Interpreters 106 6.35. Retention and copying of documents 106 Subdivision 5 -- Recommendations and determinations 6.36. Recommendations and determinations 106 Division 4 -- Financial provisions 6.37. Funds for carrying out this Act 107 6.38. Native Title Commission Account 107 6.39. Application of Financial Administration and Audit Act 1985 108 Division 5 -- General 6.40. Communication of information in certain cases 108 6.41. Reference of question of law to the Supreme Court 108 6.42. Offences 109 6.43. Disclosure of interests 110 6.44. Protection of members and persons appearing before the Commission 110 6.45. Confidentiality 111 Part 7 -- Miscellaneous 7.1. Regulations 113 7.2. Review of Act 113 page ix Native Title (State Provisions) Bill 1999 Contents 7.3. Consequential amendments 113 7.4. Transitional provisions 113 Schedule 1 -- Provisions relating to members of the Commission 1. Term of office 115 2. Remuneration, allowances and conditions of service 115 3. Oath or affirmation of office 115 4. Leave of absence 116 5. Resignation 116 6. Termination of appointment of NNTT member 116 7. Termination of appointment of member for bankruptcy etc. 116 8. Suspension by Governor and termination 116 9. Termination on address of both Houses of Parliament 117 Schedule 2 -- Consequential amendments Division 1 -- Acts Amendment (Land Administration, Mining and Petroleum) Act 1998 1. The Act amended 118 2. Section 2 amended 118 3. Sections 4 and 7 repealed 118 Division 2 -- Constitution Acts Amendment Act 1899 4. Schedule V amended 118 Division 3 -- Financial Administration and Audit Act 1985 5. Schedule 1 amended 119 Division 4 -- Land Administration Act 1997 6. The Act amended 119 7. Section 6A inserted 119 8. Section 151 amended 120 9. Section 152A inserted 121 10 . Section 153 amended 121 11 . Section 154 amended 122 12 . Section 156 amended 122 13 . Section 157 amended 123 page x Native Title (State Provisions) Bill 1999 Contents 14 . Section 158 repealed 123 15 . Section 162 amended 123 16 . Section 163 amended 123 17 . Section 170 amended 124 18 . Section 175 amended 124 19 . Section 176 amended 124 20 . Section 182 amended 124 21 . Section 183 amended 125 22 . Section 184 amended 125 23 . Section 185 amended 125 24 . Section 186 amended 125 25 . Section 207 amended 126 26 . Section 212 amended 126 27 . Section 214 amended 126 28 . Section 216 amended 127 29 . Section 217 amended 127 30 . Section 221 amended 128 31 . Section 223 amended 128 32 . Section 224 amended 129 33 . Section 241 amended 129 Division 5 -- Mining Act 1978 34 . The Act amended 130 35 . Section 19 amended 130 36 . Section 39A inserted 131 37 . Section 49 amended 131 38 . Section 56 amended 132 39 . Section 56AA inserted 132 40 . Section 67 amended 133 41 . Section 70AA inserted 133 42 . Section 70L amended 134 43 . Section 70O inserted 134 44 . Section 75 amended 135 45 . Section 85C inserted 135 46 . Section 90A inserted 136 page xi Native Title (State Provisions) Bill 1999 Contents Division 6 -- Parliamentary Commissioner Act 1971 47 . Schedule 1 amended 136 Division 7 -- Petroleum Act 1967 48 . The Act amended 137 49 . Section 5 amended 137 50 . Section 11 amended 137 51 . Section 28B inserted 138 52 . Section 48AA inserted 138 53 . Section 48L inserted 139 54 . Section 105 amended 139 55 . Section 106 amended 139 56 . Section 116 amended 140 Division 8 -- Petroleum Pipelines Act 1969 57 . The Act amended 140 58 . Section 10A inserted 140 59 . Section 19 amended 141 Schedule 3 -- Transitional provisions Division 1 -- Existing applications for mining tenements 1. Definition 142 2. Regulations may modify certain provisions 142 3. Programme for dealing with existing mining applications 142 Division 2 -- Matters in progress under section 24MD(6B) of the NTA 4. Definition 143 5. Regulations may make transitional provisions 143 Defined terms in this Act Defined terms in the NTA page xii Western Australia LEGISLATIVE ASSEMBLY (As amended during consideration in detail) Native Title (State Provisions) Bill 1999 A Bill for An Act to make -- • alternative provisions to those contained in Part 2 Division 3 Subdivision P of the Native Title Act 1993 of the Commonwealth, in accordance with sections 43 and 43A of that Act; • provisions that are supplementary to those in section 24MD(6B) of that Act; and • provision for delegations in respect of the State under section 199F of that Act, to consequentially amend certain Acts, and for related purposes. The Parliament of Western Australia enacts as follows: page 1 Native Title (State Provisions) Bill 1999 Part 1 Preliminary s. 1.1 Part 1 -- Preliminary 1.1. Short title This Act may be cited as the Native Title (State Provisions) Act 1999. 5 1.2. Commencement (1) Subject to this section, this Act comes into operation on the day on which it receives the Royal Assent. (2) The provisions of Part 4, Divisions 1, 2 and 3 of Part 5, and Part 6 come into operation -- 10 (a) on such day as is fixed by proclamation; or (b) on such days as are respectively so fixed. (3) Part 2, other than section 2.2, comes into operation on the day ("the Part 2 commencement day") on which a determination under section 43A of the NTA in relation to that Part comes into 15 force. (4) Part 3, other than section 3.1, comes into operation on the day ("the Part 3 commencement day") on which a determination under section 43 of the NTA in relation to that Part comes into force. 20 (5) Division 4 of Part 5 comes into operation on the Part 3 commencement day. (6) Section 7.3 comes into operation on -- (a) the Part 2 commencement day; (b) the Part 3 commencement day; or 25 (c) the day on which Part 4 commences, whichever is the earliest or, if those days are the same day, on that day. page 2 Native Title (State Provisions) Bill 1999 Preliminary Part 1 s. 1.3 (7) The Minister is to cause notice of each of the Part 2 commencement day and the Part 3 commencement day to be published in the Gazette as soon as it is reasonably practicable for the Minister to do so. 5 1.3. Objects The objects of this Act are those set out in -- (a) sections 2.4 and 3.3 (which relate to State alternative provisions for the purposes of sections 43 and 43A of the NTA); 10 (b) section 4.1 (which relates to State provisions supplementary to section 24MD(6B) of the NTA); and (c) section 6.10 (which relates to the delegation of powers to the Chief Commissioner under section 199F of the NTA). 15 1.4. Act binds the Crown This Act binds the Crown -- (a) in right of Western Australia; and (b) so far as the legislative power of the Parliament permits, in all its other capacities. 20 1.5. Interpretation (1) In this Act the Native Title Act 1993 of the Commonwealth is referred to as the NTA. (2) A word or expression used in this Act has the same meaning as it has in the NTA unless -- 25 (a) this Act gives it another meaning; or (b) the contrary intention appears in some other way. Note: A list of words and expressions used in this Act and defined in the NTA is attached to this Act. The list shows where in the NTA each definition can be found. page 3 Native Title (State Provisions) Bill 1999 Part 1 Preliminary s. 1.5 (3) The expression "Commonwealth Minister" when used in this Act in relation to a provision of the NTA has the same meaning as it has in that provision. (4) In this Act, unless the contrary intention appears -- 5 "Chief Commissioner" means the person appointed as such under section 6.4(2); "closing day", in relation to a Part 2 act, a Part 3 act or a Part 4 act, means -- (a) the day fixed under section 2.11, 3.9 or 4.7 for the 10 lodgment of objections to the doing of the act; or (b) the later day fixed under section 2.18(2), 3.17(2) or 4.13(2) for that purpose, as the case may require; "Commission" means the body established by section 6.1; 15 "consultation parties" has the meaning given by section 2.22 or 4.17, as the case may require; "Government party" means the person who has power to do, on behalf of the State, an act of the kind referred to in section 2.5, 3.4 or 4.2, as the case may require; 20 "member" means a member of the Commission and includes the Chief Commissioner; "negotiation parties" has the meaning given by section 3.21; "objector" means a person who has made an objection under section 2.16, 3.15 or 4.11, as the case may require, that has 25 not been withdrawn or dismissed; "ordinary member" means a member of the Commission other than the Chief Commissioner; "Part 2 act" has the meaning given by section 2.5; "Part 3 act" has the meaning given by section 3.4 and includes 30 an act to which section 2.7 applies; page 4 Native Title (State Provisions) Bill 1999 Preliminary Part 1 s. 1.5 "Part 4 act" has the meaning given by section 4.2; "proponent" means a person who is a proponent under section 2.9, 2.10, 3.7, 3.8, 4.5 or 4.6, as the case may require; 5 "recommendation" means a recommendation of the Commission under section 2.32 or 4.27, as the case may require; "registered native title rights and interests" means -- (a) where the person to whom the expression refers is a 10 registered native title claimant, the native title rights and interests described in the relevant entry on the Register of Native Title Claims; and (b) where the person to whom the expression refers is a registered native title body corporate, the native title 15 rights and interests described in the relevant entry on the National Native Title Register; "relevant land" -- (a) in Parts 2 and 4, means the land or waters to which the Part 2 act or the Part 4 act concerned relates; 20 (b) in Part 3, means the land or waters that would be affected by the Part 3 act concerned if it were done; and (c) in section 5.2(1), has the meaning specified in paragraph (a) or (b) that is appropriate to the act 25 concerned; "responsible Minister", in relation to a Part 2 act, a Part 3 act or a Part 4 act, means the Minister responsible for the administration of the Act under which the act would be done. 30 (5) To avoid doubt it is declared that references in this Act to "written law" are to a written law of the State. page 5 Native Title (State Provisions) Bill 1999 Part 1 Preliminary s. 1.6 (6) Notes in this Act are provided to assist understanding and do not form part of the Act. 1.6. Performance of certain functions on behalf of Minister (1) Where a Government party is a Minister of the Crown the 5 consultation or negotiation functions of the Government party under Part 2, 3, or 4 may be performed on behalf of the Government party by any official authorized by the Government party for that purpose, whether generally or for any particular case. 10 (2) Nothing in this Act is to be read as preventing the exercise by a Government party of a power of delegation conferred by a written law. 1.7. Replacement of person as objector etc. (1) If -- 15 (a) a person becomes a registered native title claimant because the person replaces another person as the applicant in relation to a native title determination application under section 61 of the NTA; and (b) the other person is an objector, a consultation party or a 20 negotiation party, the first-mentioned person also replaces the other person in his or her capacity referred to in paragraph (b). (2) If -- (a) a registered native title claimant in relation to a 25 determination application under section 61 of the NTA is an objector, a consultation party or a negotiation party in relation to an act; and page 6 Native Title (State Provisions) Bill 1999 Preliminary Part 1 s. 1.8 (b) as a result of a determination of an application under that section a body corporate becomes a registered native title body corporate in relation to the relevant land, 5 the registered native title body corporate replaces the registered native title claimant as the objector, consultation party or negotiation party in relation to the act. 1.8. Objector ceasing to be a registered native title claimant If a person who has lodged an objection under 10 section 2.16(1)(b), 3.15(1)(b) or 4.11(1)(b) ceases to be a registered native title claimant, the person also ceases to be an objector, a consultation party or a negotiation party, as the case may be. page 7 Native Title (State Provisions) Bill 1999 Part 2 Consultation procedures for alternative provision areas Division 1 Preliminary s. 2.1 Part 2 -- Consultation procedures for alternative provision areas Division 1 -- Preliminary 2.1. Definitions 5 In this Part -- "alternative provision area" has the meaning given by section 43A(2) of the NTA except that it does not include an area -- (a) that is covered by a grant for the benefit of 10 Aboriginal persons; and (b) over which all native title rights and interests have not been extinguished; "grant for the benefit of Aboriginal persons" means -- (a) a lease granted for a fixed term or in perpetuity for 15 the use and benefit of Aboriginal persons under -- (i) section 9 or 116 of the Land Act 1933; or (ii) section 79 or 83 of the Land Administration Act 1997; or 20 (b) a reserve under section 29 of the Land Act 1933 or section 41 of the Land Administration Act 1997 for the use and benefit of Aboriginal persons where the land concerned is used for that purpose. page 8 Native Title (State Provisions) Bill 1999 Consultation procedures for alternative provision areas Part 2 Preliminary Division 1 s. 2.2 2.2. Request for determination under section 43A of the NTA The State Minister may, on behalf of the State, request the Commonwealth Minister to make a determination under section 43A of the NTA that -- 5 (a) the provisions of this Part comply with section 43A(4) and (6) of the NTA; and (b) the requirements of section 43A(7) are complied with. 2.3. Transitional provisions The regulations may make transitional provisions, so far as the 10 legislative power of the Parliament permits, that are necessary or expedient to be made in connection with the amendment or revocation of a determination referred to in section 2.2. 2.4. Object of this Part The object of this Part is to make provisions that -- 15 (a) are alternative to those contained in Part 2 Division 3 Subdivision P of the NTA in relation to acts to which that Subdivision applies that are attributable to the State; and (b) are permitted by section 43A(1) of the NTA to have 20 effect instead of Subdivision P while a determination referred to in section 2.2 is in force, in relation to an area of land or waters that is an alternative provision area. Note: Part 2 Division 3 Subdivision P of the NTA contains right to negotiate procedures in 25 relation to some future acts. For an overview of that Subdivision, see section 25 of the NTA. page 9 Native Title (State Provisions) Bill 1999 Part 2 Consultation procedures for alternative provision areas Division 2 Relevant future acts and their validity s. 2.5 Division 2 -- Relevant future acts and their validity 2.5. Acts to which this Part applies (1) This Part applies to a future act ("a Part 2 act") done by the State that -- 5 (a) is referred to in -- (i) section 26(1A)(a) and (c) of the NTA; or (ii) section 26(1)(a) and (c) of the NTA; (b) is not referred to in section 26(2) of the NTA; and (c) subject to subsection (3), relates to any extent to an area 10 of land or waters that is an alternative provision area. (2) This Part applies to an act only to the extent that the act relates to a place that is on the landward side of the mean high-water mark of the sea. (3) This Part does not apply to a compulsory acquisition that comes 15 within section 26(1)(c)(iii) of the NTA if it involves the acquisition of native title rights and interests in relation to land or waters in both an alternative provision area and an area that is not an alternative provision area. (4) If by operation of section 43B of the NTA a future act is taken 20 to consist of 2 separate acts, this Part applies only to the separate act that comes within paragraph(c)(i) of that section. (5) This Part does not apply to an act in respect of which a determination is made under section 2.7. 2.6. Circumstances in which act is not valid 25 (1) A Part 2 act is not valid to the extent that it affects native title unless, before it is done, the requirements of one of the paragraphs of subsection (2) are satisfied in respect of the act. page 10 Native Title (State Provisions) Bill 1999 Consultation procedures for alternative provision areas Part 2 Relevant future acts and their validity Division 2 s. 2.6 (2) The requirements are -- (a) no objection is lodged under section 2.16 before the close of business on the last day for the lodgment of objections; 5 (b) after the last day for the lodgment of objections, but immediately before the act is done, there is no -- (i) registered native title body corporate; or (ii) registered native title claimant, in relation to any part of the relevant land; 10 (c) all objections lodged under section 2.16 before the close of business on the last day for the lodgment of objections are -- (i) withdrawn under section 2.25; or (ii) dismissed under section 2.29; 15 (d) an agreement of the kind described in section 2.26 is made by the consultation parties and given to the Commission under that section; (e) a recommendation is made that the act be done, or be done subject to conditions being complied with, and the 20 recommendation -- (i) has not been overruled under section 2.38; and (ii) is no longer capable of being overruled -- (I) because of section 2.38(2); or (II) because the responsible Minister has 25 given an instrument to the Commission under section 2.43; (f) a recommendation that the act not be done is overruled under section 2.38; or (g) a recommendation -- 30 (i) that the act be done; or page 11 Native Title (State Provisions) Bill 1999 Part 2 Consultation procedures for alternative provision areas Division 2 Relevant future acts and their validity s. 2.7 (ii) that the act be done subject to conditions being complied with, is overruled under section 2.38 and a determination is made under that section that the act may be done subject 5 to conditions being complied with. (3) In subsection (2) -- "close of business" means the close of business of the Government party as specified in accordance with section 2.13(2)(f); 10 "last day for the lodgment of objections" -- (a) in relation to a person who has filed an application in terms of section 2.18(3)(a) in relation to any part of the relevant land (a "pending application"), means the day that is one month after the closing day; and 15 (b) in relation to any other person, or if at the closing day there is no pending application, means the closing day. 2.7. Part 3 may be applied to a Part 2 act The Government party may, on the application of a person who 20 has applied for, or made a request or submission for, the doing of an act that would otherwise come within section 2.5, determine that Part 2 is not to apply to the act but that it is to be treated instead as a Part 3 act. 2.8. Other statutory requirements not affected 25 Nothing in section 2.6, or in an agreement, recommendation or determination under this Part, authorizes the Government party to do a Part 2 act without complying with any requirements of another written law that apply to the doing of the act. page 12 Native Title (State Provisions) Bill 1999 Consultation procedures for alternative provision areas Part 2 Notices and objections Division 3 s. 2.9 Division 3 -- Notices and objections 2.9. Proponent where act relates to mining Where the Part 2 act, if done, would -- (a) create or vary a right to mine; or 5 (b) renew, re-grant, remake or extend the term of an instrument creating a right to mine, the proponent for the purposes of this Part is the person who under the relevant written law has applied for the act to be done. 2.10. Identification of proponents in other cases 10 (1) This section applies where the Part 2 act is not covered by section 2.9. (2) The Government party is to determine the person or persons (if any) who, because of an application, request or submission made by the person or persons for the act to be done, are to be 15 treated as the proponent or proponents in relation to the act for the purposes of this Part. (3) The Government party may amend a determination under subsection (2). (4) The Government party must give notice in writing to each 20 proponent of -- (a) a determination under subsection (2); and (b) an amendment of a determination, relating to that proponent. (5) If there is any other consultation party in relation to the act at 25 the time when a notice is given under subsection (4) the Government party must give the copy of the notice to each other consultation party. page 13 Native Title (State Provisions) Bill 1999 Part 2 Consultation procedures for alternative provision areas Division 3 Notices and objections s. 2.11 2.11. Closing day for objections (1) The Government party is to fix, for every Part 2 act, a closing day for the lodgment of objections to the doing of the act. (2) The Government party may fix a later closing day for the 5 lodgment of objections to the doing of a Part 2 act if the Government party is satisfied that it has not been reasonably practicable for section 2.13(1) to be complied with in respect of the act. 2.12. Notification of acts 10 Before a Part 2 act is done notice in writing of the act must be given to -- (a) any registered native title body corporate in relation to any of the relevant land; (b) any registered native title claimant in relation to any of 15 the relevant land; (c) any representative body for an area that includes any of the relevant land; and (d) the Native Title Registrar. 2.13. Further provision as to notices 20 (1) The notices required by section 2.12 in respect of a Part 2 act must be given at least 3 months before the closing day. (2) Every notice must show -- (a) a clear description of the land or waters to which the act relates; 25 (b) a description of the nature of the act; (c) the title of the Government party who -- (i) would do the act; and page 14 Native Title (State Provisions) Bill 1999 Consultation procedures for alternative provision areas Part 2 Notices and objections Division 3 s. 2.14 (ii) will receive objections; (d) the address at which objections may be lodged and the postal address to which they may be sent; (e) the closing day; 5 (f) the time of close of business of the Government party on the closing day; (g) the name and address of any person who is a proponent under section 2.9 or is determined to be a proponent under section 2.10(2); 10 (h) how further information about the act can be obtained; and (i) any other information that is prescribed for the purposes of section 2.15(1)(a). (3) Every notice must also contain a statement explaining how 15 section 2.18(3) operates to allow a person time -- (a) to become a registered native title claimant in relation to the relevant land; and (b) by so doing to become eligible in terms of section 2.16(1)(b) to lodge an objection to the doing of 20 the act. (4) The particulars referred to in subsection (2)(c), (d) and (f) are to be as determined by the Government party. 2.14. Who gives notice (1) The notices required by section 2.12 are to be given -- 25 (a) by the Government party where the Part 2 act is a compulsory acquisition that comes within section 26(1)(c)(iii) of the NTA; or page 15 Native Title (State Provisions) Bill 1999 Part 2 Consultation procedures for alternative provision areas Division 3 Notices and objections s. 2.15 (b) in the case of any other kind of Part 2 act -- (i) by persons of a class prescribed by the regulations in relation to an act of that kind; or (ii) if no person is so prescribed at the time when the 5 notice is given, by the Government party. (2) A proponent or other person who is required to give any notice is to submit to the Government party proof of the notice having been given. 2.15. Prescribed provisions about notice 10 (1) The regulations may make provision about the giving of notice under this Division including about -- (a) the information that must be included in a notice; and (b) how the requirement to give notice -- (i) may be satisfied either generally or in particular 15 types of cases; and (ii) may be satisfied in conjunction with the giving of notice under another written law that relates to a Part 2 act. (2) Regulations of the kind referred to in subsection (1)(b)(ii) may 20 be expressed to be made under section 7.1 and under powers conferred by another written law. 2.16. Right to object to doing of act (1) A person that is, in relation to any part of the relevant land -- (a) a registered native title body corporate; or 25 (b) subject to subsection (3), a registered native title claimant, may lodge an objection to the doing of a Part 2 act. page 16 Native Title (State Provisions) Bill 1999 Consultation procedures for alternative provision areas Part 2 Notices and objections Division 3 s. 2.17 (2) An objection may be lodged only on the ground that the doing of the act in relation to the relevant land would affect the person's registered native title rights and interests in relation to that land. 5 (3) Subsection (1)(b) does not apply if there are one or more registered native title bodies corporate in relation to all of the relevant land. 2.17. Requirements for objections An objection must -- 10 (a) be lodged with the Government party in accordance with the requirements of the relevant notice; (b) state the manner in which it is said that the doing of the act would be likely to affect the objector's registered native title rights and interests in relation to the relevant 15 land; and (c) comply with any other requirements of the regulations as to the form or content of objections. 2.18. Time limit (1) An objection against a Part 2 act cannot be lodged after the 20 closing day. (2) Where, on the application of a person made before the closing day, the Commission is satisfied that exceptional circumstances so require, the Commission may -- (a) fix a later closing day for the lodgment of objections to 25 the doing of the act; and (b) give such directions as the Commission thinks appropriate as to the giving of notice of the day so fixed. page 17 Native Title (State Provisions) Bill 1999 Part 2 Consultation procedures for alternative provision areas Division 3 Notices and objections s. 2.19 (3) If -- (a) on or before the closing day for a Part 2 act, a person files a native title determination application under section 61 of the NTA; and 5 (b) within one month after the closing day the person becomes a registered native title claimant, in relation to any part of the relevant land, the person may, despite subsection (1), lodge an objection to the doing of the act within the period referred to in paragraph (b). 10 (4) A person who files an application referred to in subsection (3) must, within 7 days of doing so, notify the Government party and any proponent in writing of that fact. 2.19. Government party to notify the Commission of objections (1) The Government party must notify -- 15 (a) the Commission; and (b) any proponent, of the particulars of all objections against a Part 2 act lodged on or before the closing day or in accordance with section 2.18(3). (2) Notification under subsection (1) of an objection must be given 20 not later than 14 days after the lodgment of the objection. 2.20. Withdrawal of request etc. by proponent (1) The proponent in relation to a Part 2 act may give notice in writing to -- (a) the Commission; 25 (b) the other consultation parties (if any); and (c) the Government party, that the proponent's application, request or submission for the doing of the act is withdrawn. page 18 Native Title (State Provisions) Bill 1999 Consultation procedures for alternative provision areas Part 2 Consultation and agreements Division 4 s. 2.21 (2) If there is more than one proponent a notice under subsection (1) is of no effect unless it is given by all of the proponents jointly. (3) The giving of a notice under subsection (1) to all of the persons 5 referred to in that subsection brings to an end any procedures that have begun under this Part. 2.21. Withdrawal of proposal by Government party (1) The application of section 2.20 extends to cases where -- (a) section 2.9 does not apply; and 10 (b) a proponent has not been determined under section 2.10(2). (2) In that event -- (a) a notice may be given by the Government party that the act will not be done; and 15 (b) the provisions of section 2.20 apply with all necessary changes. Division 4 -- Consultation and agreements 2.22. Meaning of "consultation parties" References in this Part to "consultation parties" in relation to a 20 Part 2 act are references to -- (a) each proponent under section 2.9 and each objector; or (b) where section 2.9 does not apply -- (i) the Government party; (ii) each objector; and 25 (iii) any person determined under section 2.10(2) to be a proponent but only so long as the person consents to being a consultation party. page 19 Native Title (State Provisions) Bill 1999 Part 2 Consultation procedures for alternative provision areas Division 4 Consultation and agreements s. 2.23 2.23. Consultation (1) If a Part 2 act is a compulsory acquisition that comes within section 26(1)(c)(iii) of the NTA, the consultation parties must consult with each other in good faith about ways of minimizing 5 the impact of the act on registered native title rights and interests in relation to the relevant land with a view to bringing about the withdrawal of the objections. (2) In the case of any other Part 2 act, the consultation parties must consult with each other in good faith about ways of minimizing 10 the impact of the act on registered native title rights and interests in relation to the relevant land, including about -- (a) any access to the relevant land; or (b) the way in which any thing authorized by the act may be done, 15 with a view to bringing about the withdrawal of the objections. (3) The consultation parties for the time being may begin consultations even though the closing day for the act concerned has not arrived. 2.24. Involvement of Commission, including mediation 20 (1) If any of the consultation parties requests the Commission to do so, the Commission must mediate among the parties to assist in resolving the differences between them on the relevant matters mentioned in section 2.23. (2) The consultation parties must report to the Commission on 25 progress made in the consultations at such time or times as the Commission may in writing direct. page 20 Native Title (State Provisions) Bill 1999 Consultation procedures for alternative provision areas Part 2 Recommendations of the Commission Division 5 s. 2.25 (3) If the Commission considers that the consultation parties or any of them are not making sufficient attempts to resolve their differences the Commission is to use its best endeavours -- (a) to have the parties consult together in good faith as 5 required by section 2.23; and (b) to bring about -- (i) a resolution of the differences between them on the relevant matters mentioned in section 2.23; or (ii) the withdrawal of the objections. 10 2.25. Withdrawal of objection (1) At any time before a recommendation is made under Division 5 in relation to an objection the objector may withdraw the objection by notice in writing given to the Commission. (2) The Commission is to notify the consultation parties of any such 15 withdrawal. 2.26. Agreement made by parties If at any time before a recommendation is made under Division 5 the consultation parties make an agreement that resolves the issues on which the objections were based, they 20 may give a copy of it to the Commission. Division 5 -- Recommendations of the Commission 2.27. Commission may notify intention to hear (1) The Commission may, after the consultation period for a Part 2 act has expired, give notice to the consultation parties that it 25 intends to hear and determine objections to the doing of the act -- (a) if -- (i) all of the objections have not been withdrawn; or page 21 Native Title (State Provisions) Bill 1999 Part 2 Consultation procedures for alternative provision areas Division 5 Recommendations of the Commission s. 2.28 (ii) an agreement of the kind described in section 2.26 has not been made between the consultation parties and given to the Commission under that section; 5 and (b) if the Commission considers that any mediation requested under section 2.24(1) has been completed. (2) A notice under subsection (1) in respect of a Part 2 act may be given by the Commission -- 10 (a) of its own motion; or (b) on the application of a consultation party. (3) Before the Commission gives a notice under subsection (1) of its own motion, it must give the consultation parties an opportunity to inform it whether the making of an agreement of 15 the kind described in section 2.26 is imminent. (4) The Commission must grant an application made under subsection (2)(b) if the application complies with section 2.45 and is accompanied by the things required by section 2.46. (5) Without limiting section 6.22, a notice under subsection (1) may 20 relate to more than one act and the objections to the doing of the act. (6) In this section -- "consultation period" means the period beginning on the closing day and ending 4 months after that day. 25 2.28. Consultations may continue Where the Commission -- (a) has given notice under section 2.27; but page 22 Native Title (State Provisions) Bill 1999 Consultation procedures for alternative provision areas Part 2 Recommendations of the Commission Division 5 s. 2.29 (b) has not made a recommendation, in respect of a Part 2 act, the consultation parties may continue to consult together with a view to bringing about -- (c) a resolution of the issues on which the objections are 5 based; and (d) the withdrawal of the objections. 2.29. Dismissal of objections (1) The Commission must dismiss an objection if -- (a) it is not made by a registered native title body corporate 10 or a registered native title claimant as required by section 2.16(1); or (b) none of the rights and interests claimed to be affected by the doing of the act are registered native title rights and interests of the objector. 15 (2) The Commission must notify an objector of the dismissal of his or her objection. 2.30. Time for making recommendation (1) Subject to section 2.31, the Commission must take all reasonable steps to make a recommendation in respect of a 20 Part 2 act within the period of 4 months ("the allowed period") starting when a notice under section 2.27 is given in respect of the act. (2) If it appears to the Commission that it will not make a recommendation within the allowed period, the Commission 25 may before the end of the period ask the responsible Minister to extend the period, and that Minister may comply with the request. page 23 Native Title (State Provisions) Bill 1999 Part 2 Consultation procedures for alternative provision areas Division 5 Recommendations of the Commission s. 2.31 (3) An extended period may be further extended under subsection (2). 2.31. No recommendation if agreement etc. The Commission must not make a recommendation in respect of 5 a Part 2 act if -- (a) all of the objections to the doing of the act have been withdrawn; or (b) an agreement of the kind described in section 2.26 has been made between the consultation parties and given to 10 the Commission under that section. 2.32. Making of recommendation (1) Except where section 2.31 applies, the Commission must make one of the following recommendations -- (a) that the act be done; 15 (b) that the act be done subject to specified conditions being complied with by any of the consultation parties; (c) that the act not be done. (2) The Commission may specify conditions under subsection (1)(b) only if they relate to the doing of the act as it 20 affects registered native title rights and interests in relation to the relevant land. (3) The Commission must not specify a condition under subsection (1)(b) that has the effect that an objector is to be entitled to payments worked out by reference to -- 25 (a) the amount of profits made; (b) any income derived; or page 24 Native Title (State Provisions) Bill 1999 Consultation procedures for alternative provision areas Part 2 Recommendations of the Commission Division 5 s. 2.33 (c) any things produced, by any other consultation party as a result of doing anything in relation to the relevant land after the act is done. 2.33. Criteria for making recommendations 5 (1) In making its recommendation in respect of any Part 2 act, the Commission must -- (a) take into account the impact of the act on registered native title rights and interests of the objectors in relation to the relevant land; and 10 (b) unless it recommends that the act not be done, consider ways in which that impact can be minimized. (2) In addition, in making its recommendation in respect of a Part 2 act that is not a compulsory acquisition that comes within section 26(1)(c)(iii) of the NTA, the Commission must consider 15 questions of -- (a) access to the relevant land; and (b) the way in which any thing authorized by the act may be done. (3) The Commission must also take into account the nature and 20 extent of -- (a) existing rights and interests that are not native title rights and interests, in relation to the relevant land; and (b) existing use of the relevant land by persons other than the objectors. 25 2.34. Issues on which parties agree (1) Before making its recommendation, the Commission must ascertain whether the consultation parties have an agreed position on any issues relevant to its recommendation. page 25 Native Title (State Provisions) Bill 1999 Part 2 Consultation procedures for alternative provision areas Division 5 Recommendations of the Commission s. 2.35 (2) If there is any such issue, and all of the consultation parties consent, the Commission in making its recommendation -- (a) must take that agreed position into account; and (b) need not take into account the matters mentioned in 5 section 2.33, to the extent that the matters relate to that issue. 2.35. Copy of recommendation to be given The Commission must give a copy of any recommendation under section 2.32 to the consultation parties and the 10 responsible Minister. 2.36. Effect of recommendation A recommendation must be complied with by the Government party unless it is overruled by a determination of the responsible Minister under section 2.38. 15 2.37. Effect of recommendation that specifies conditions (1) A recommendation by the Commission that a Part 2 act may be done subject to conditions being complied with by the consultation parties has effect, if the act is done, as if the conditions were terms of a contract among the consultation 20 parties. (2) Subsection (1) is in addition to -- (a) the effect that the recommendation has under section 2.36; and (b) any condition that the Government party may impose in 25 relation to the act in order to give effect to the recommendation. page 26 Native Title (State Provisions) Bill 1999 Consultation procedures for alternative provision areas Part 2 Overruling of recommendations Division 6 s. 2.38 (3) If an objector is a registered native title claimant, any other person included in the native title claim group concerned is taken to be a consultation party for the purposes only of this section. Division 6 -- Overruling of recommendations 5 2.38. Responsible Minister may overrule a recommendation (1) Subject to sections 2.40 and 2.41, the responsible Minister may, by writing given to the Commission, make a determination in accordance with section 2.39. (2) A determination cannot be made by the responsible Minister in 10 respect of a recommendation after 2 months have expired since the recommendation was made. (3) The Commission must give a copy of the determination to the consultation parties concerned. 2.39. Determinations that responsible Minister may make 15 (1) In the case of a recommendation under section 2.32(1)(a), the responsible Minister may make a determination that the recommendation is overruled and either -- (a) that the act to which it relates must not be done; or (b) that the act to which it relates may be done subject to 20 specified conditions to be complied with by any of the consultation parties. (2) In the case of a recommendation under section 2.32(1)(b), the responsible Minister may make a determination that the recommendation is overruled and -- 25 (a) that the act to which it relates must not be done; (b) that the act to which it relates may be done; or page 27 Native Title (State Provisions) Bill 1999 Part 2 Consultation procedures for alternative provision areas Division 6 Overruling of recommendations s. 2.40 (c) that the act to which it relates may be done subject to specified conditions to be complied with by any of the consultation parties. (3) In the case of a recommendation under section 2.32(1)(c), the 5 responsible Minister may make a determination that the recommendation is overruled and either -- (a) that the act to which it relates may be done; or (b) that the act to which it relates may be done subject to specified conditions to be complied with by any of the 10 consultation parties. (4) The responsible Minister may only specify conditions under this section that relate to the doing of the act as it affects registered native title rights and interests in relation to the relevant land. (5) In this section -- 15 "specified" means specified in the determination. 2.40. Consultation before making of determination (1) This section applies if the effect of the responsible Minister's determination under section 2.38 is that the act may be done -- (a) unconditionally; 20 (b) subject to conditions being complied with; or (c) subject to conditions being complied with that are different in any respect from the conditions specified in the recommendation that is overruled. (2) If this section applies, the responsible Minister may only make a 25 determination under section 2.38 after he or she has -- (a) consulted the State Minister principally responsible for indigenous affairs about -- (i) the Commission's recommendation; and page 28 Native Title (State Provisions) Bill 1999 Consultation procedures for alternative provision areas Part 2 Overruling of recommendations Division 6 s. 2.41 (ii) any determination that the responsible Minister may make; and (b) taken into account any recommendation or advice made 5 or given by that Minister. (3) Before the consultations referred to in subsection (2) are held, the State Minister principally responsible for indigenous affairs is to be given -- (a) by the Commission, any submission or other material 10 that was put before it in relation to the recommendation in question; and (b) by the responsible Minister, any submission or other material that has been put before him or her for the purposes of the determination in question. 15 (4) The duty imposed by subsection (3)(a) applies subject to any direction given by the Commission under section 6.29. 2.41. Ground on which determination may be made (1) The responsible Minister may only make a determination under section 2.38 on the ground that it is in the interests of the State 20 to do so. (2) In subsection (1) -- "in the interests of the State" includes -- (a) for the social or economic benefit of the State (including of Aboriginal peoples); and 25 (b) in the interests of the relevant region or locality in the State. page 29 Native Title (State Provisions) Bill 1999 Part 2 Consultation procedures for alternative provision areas Division 6 Overruling of recommendations s. 2.42 2.42. Conditions in determination (1) A provision in a determination by the responsible Minister under section 2.38 that a Part 2 act may be done subject to conditions being complied with by any of the consultation 5 parties has effect, if the act is done, as if the conditions were terms of a contract among the consultation parties. (2) Subsection (1) is in addition to -- (a) the effect of the determination apart from this section; and 10 (b) any condition that the Government party may impose in relation to the act in order to give effect to the determination. (3) If an objector is a registered native title claimant, any other person included in the native title claim group concerned is 15 taken to be a consultation party for the purposes only of this section. 2.43. Responsible Minister may declare intention not to overrule (1) The responsible Minister may by instrument given to the Commission declare that he or she does not intend to exercise 20 any power conferred by section 2.38 in respect of a particular recommendation. (2) If an instrument is given to the Commission under subsection (1) the responsible Minister -- (a) cannot revoke the instrument; and 25 (b) cannot exercise any power conferred by section 2.38 in respect of the recommendation concerned. (3) The Commission is to notify the consultation parties of the giving of an instrument to it under subsection (1). page 30 Native Title (State Provisions) Bill 1999 Consultation procedures for alternative provision areas Part 2 Applications Division 7 s. 2.44 Division 7 -- Applications 2.44. Definition In this Division -- "application" means an application under section 2.27(2)(b). 5 2.45. Form and contents of application An application must -- (a) be made in accordance with the regulations; and (b) comply with the requirements of the regulations as to the form or content of applications. 10 2.46. Material and fees to accompany applications An application must be accompanied by any prescribed documents and any prescribed fee. 2.47. Application fee may be waived The Chief Commissioner may waive payment of the whole or 15 part of a fee payable by a person under section 2.46 where -- (a) in the Chief Commissioner's opinion, payment of the whole or part of the fee would cause financial hardship to the person; or (b) for any other reason the Chief Commissioner considers 20 it appropriate to do so. Division 8 -- Judicial review 2.48. Application for review (1) A consultation party in relation to a Part 2 act may apply to the Supreme Court for a review of a decision to which this section 25 applies. page 31 Native Title (State Provisions) Bill 1999 Part 2 Consultation procedures for alternative provision areas Division 8 Judicial review s. 2.49 (2) The decisions referred to are -- (a) a dismissal under section 2.29 of an objection to the doing of the act; (b) a recommendation of the Commission under 5 section 2.32(1)(a) or (b) in respect of the act; and (c) a determination of the responsible Minister under section 2.38(1) that the act -- (i) may be done; or (ii) may be done subject to conditions. 10 2.49. Time limit for application (1) An application for review must be made not later than 28 days after the day on which -- (a) notice of the dismissal of the objection is given to the applicant; or 15 (b) a copy of the determination is given to the applicant under section 2.38(3), as the case may be. (2) In the case of a recommendation of the Commission, an application for review must be made not later than 28 days 20 after -- (a) the day on which the applicant is notified under section 2.43(3) that the responsible Minister has given an instrument to the Commission under section 2.43; or (b) the expiry of the period referred to in section 2.38(2), 25 whichever happens first. page 32 Native Title (State Provisions) Bill 1999 Consultation procedures for alternative provision areas Part 2 Judicial review Division 8 s. 2.50 2.50. Procedure The manner of making the application and other matters relating to the proceedings are to be as prescribed by rules of court. 2.51. Grounds on which application may be made 5 (1) An application for review may only be made on a ground or grounds that would support an application for a remedy of -- (a) injunction; (b) declaratory judgment; or (c) an order in the nature of a prerogative writ. 10 (2) The application is not required to specify the kind of remedy that is sought but is taken to be an application for the grant of such of the remedies referred to in subsection (1) as the Court considers appropriate in the circumstances. 2.52. Powers of Court 15 On the making of an application for review the Court may grant such relief as it considers appropriate in the circumstances, including relief by way of any of the remedies referred to in section 2.51(1). 2.53. Effect on other remedies 20 This Division displaces, in respect of a decision to which it applies, the right of a consultation party to apply in other proceedings for relief of a kind that is available under this Division. page 33 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 1 Preliminary s. 3.1 Part 3 -- Right to negotiate procedures for areas not covered by Part 2 Division 1 -- Preliminary 3.1. Request for determination under section 43(1)(b) of the 5 NTA The State Minister may, on behalf of the State, request the Commonwealth Minister to make a determination under section 43(1)(b) of the NTA that the provisions of this Part comply with section 43(2) of the NTA. 10 3.2. Transitional provisions The regulations may make transitional provisions, so far as the legislative power of the Parliament permits, that are necessary or expedient to be made in connection with the amendment or revocation of a determination referred to in section 3.1. 15 3.3. Object of this Part The object of this Part is to make provisions that -- (a) are alternative to those contained in Part 2 Division 3 Subdivision P of the NTA; and (b) are permitted by section 43(1) of the NTA to have effect 20 instead of Subdivision P while a determination referred to in section 3.1 is in force, in relation to acts to which that Subdivision applies that are attributable to the State. Note: Part 2 Division 3 Subdivision P of the NTA contains right to negotiate procedures in 25 relation to some future acts. For an overview of that Subdivision, see section 25 of the NTA. page 34 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Relevant future acts and their validity Division 2 s. 3.4 Division 2 -- Relevant future acts and their validity 3.4. Acts to which this Part applies (1) This Part applies to a future act ("a Part 3 act") done by the State that -- 5 (a) is referred to in -- (i) section 26(1A)(a) and (c) of the NTA; or (ii) section 26(1)(a) and (c) of the NTA; (b) is not referred to in section 26(2) of the NTA; and (c) subject to section 2.7, is not a Part 2 act. 10 (2) This Part applies to an act only to the extent that the act relates to a place that is on the landward side of the mean high-water mark of the sea. (3) If by operation of section 43B of the NTA a future act is taken to consist of 2 separate acts -- 15 (a) this Part applies only to the separate act that comes within paragraph (c)(ii) of that section; and (b) for the purposes of this Part that act is taken to be done at the time provided for by paragraph (d) of that section. 3.5. Circumstances in which act is not valid 20 (1) A Part 3 act is not valid to the extent that it affects native title unless, before it is done, the requirements of one of the paragraphs of subsection (2) are satisfied in respect of the act. (2) The requirements are -- (a) no objection is lodged under section 3.15 before the 25 close of business on the last day of the objection period; (b) after the objection period, but immediately before the act is done, there is no -- (i) registered native title body corporate; or page 35 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 2 Relevant future acts and their validity s. 3.5 (ii) registered native title claimant, in relation to any part of the relevant land; (c) all objections lodged under section 3.15 before the close of business on the last day of the objection period are -- 5 (i) withdrawn under section 3.24; or (ii) dismissed under section 3.41; (d) an agreement of the kind mentioned in section 3.22(1) is -- (i) made by the negotiation parties; 10 (ii) given to the Commission under section 3.25; and (iii) accepted by the Commission under section 3.26(2); (e) a determination is made under section 3.29 that the act may be done, or may be done subject to conditions 15 being complied with; (f) a determination is made under section 3.44 that the act may be done, or may be done subject to conditions being complied with, and the determination -- (i) has not been overruled under section 3.51; and 20 (ii) is no longer capable of being overruled -- (I) because of section 3.51(2); or (II) because the responsible Minister has given an instrument to the Commission under section 3.55; 25 (g) a determination that the act must not be done is declared to be overruled under section 3.51; or (h) a determination under section 3.44 -- (i) that the act may be done; or page 36 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Notices and objections Division 3 s. 3.6 (ii) that the act may be done subject to conditions being complied with, is overruled under section 3.51 and a declaration is made under that section that the act may be done subject to 5 conditions being complied with. (3) In subsection (2) -- "close of business" means the close of business of the Government party as specified in accordance with section 3.11(2)(f); 10 "objection period", in relation to a Part 3 act, means the period beginning when any notice of the act is given under section 3.10 and ending with the day that is one month after the closing day in relation to the act. (4) The term "objection period" is defined in subsection (3) to 15 extend beyond the closing day in relation to a Part 3 act to allow for cases where section 3.17(3) applies, and the definition is not to be read as in any way limiting the operation of section 3.17(1). 3.6. Other statutory requirements not affected 20 Nothing in section 2.7 or 3.5, or in an agreement, determination or declaration under this Part, authorizes the Government party to do a Part 3 act without complying with any requirements of another written law that apply to the doing of the act. Division 3 -- Notices and objections 25 3.7. Proponent where act relates to mining Where the Part 3 act, if done, would -- (a) create or vary a right to mine; or page 37 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 3 Notices and objections s. 3.8 (b) renew, re-grant, remake or extend the term of an instrument creating a right to mine, the proponent for the purposes of this Part is the person who under the relevant written law has applied for the act to be done. 5 3.8. Identification of proponents in other cases (1) This section applies where the Part 3 act is not covered by section 3.7. (2) The Government party is to determine the person or persons (if any) who, because of an application, request or submission 10 made by the person or persons for the act to be done, are to be treated as the proponent or proponents in relation to the act for the purposes of this Part. (3) The Government party may amend a determination under subsection (2). 15 (4) The Government party must give notice in writing to each proponent of -- (a) a determination under subsection (2); and (b) any amendment of a determination, relating to that proponent. 20 (5) If there is any other negotiation party in relation to the act at the time when a notice is given under subsection (4) the Government party must give the copy of the notice to each other negotiation party. 3.9. Closing day for objections 25 (1) The Government party is to fix, for every Part 3 act, a closing day for the lodgment of objections to the doing of the act. page 38 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Notices and objections Division 3 s. 3.10 (2) The Government party may fix a later closing day for the lodgment of objections to the doing of a Part 3 act if the Government party is satisfied that it has not been reasonably practicable for section 3.11(1) to be complied with in respect of 5 the act. 3.10. Notification of acts (1) Before a Part 3 act is done, public notice of the act must be given by advertisement -- (a) in a newspaper circulating generally throughout the 10 State; and (b) in a newspaper or magazine that -- (i) caters mainly or exclusively for the interests of Aboriginal peoples; (ii) circulates in the area that may be affected by the 15 act; and (iii) is published at least once a month. (2) Notice in writing of the act must also be given to -- (a) any registered native title body corporate in relation to any of the relevant land; 20 (b) any registered native title claimant in relation to any of the relevant land; (c) any representative body for an area that includes any of the relevant land; and (d) the Native Title Registrar. 25 3.11. Further provision as to notices (1) The notices required by section 3.10 in respect of a Part 3 act must be given at least 3 months before the closing day. page 39 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 3 Notices and objections s. 3.11 (2) Every notice must show -- (a) a clear description of the land or waters to which the act relates; (b) a description of the nature of the act; 5 (c) the title of the Government party who -- (i) would do the act; and (ii) will receive objections; (d) the address at which objections may be lodged and the postal address to which they may be sent; 10 (e) the closing day; (f) the time of close of business of the Government party on the closing day and on the day that is one month after that day; (g) the name and address of any person who is a proponent 15 under section 3.7 or is determined to be a proponent under section 3.8(2); (h) how further information about the act can be obtained; and (i) any other information that is prescribed for the purposes 20 of section 3.14(1)(a). (3) Every notice must also contain a statement explaining how section 3.17(3) operates to allow a person time -- (a) to become a registered native title claimant in relation to the relevant land; and 25 (b) by so doing to become eligible in terms of section 3.15(1)(b) to lodge an objection to the doing of the act. (4) The particulars referred to in subsection (2)(c), (d) and (f) are to be as determined by the Government party. page 40 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Notices and objections Division 3 s. 3.12 3.12. Notice may relate to 2 or more acts One notice may relate to the doing of 2 or more Part 3 acts. 3.13. Who gives notice (1) The notices required by section 3.10 are to be given -- 5 (a) by the Government party where the Part 3 act is a compulsory acquisition that comes within section 26(1)(c)(iii) of the NTA; or (b) in the case of any other kind of Part 3 act -- (i) by persons of a class prescribed by the 10 regulations in relation to an act of that kind; or (ii) if no person is so prescribed at the time when the notice is given, by the Government party. (2) A proponent or other person who is required to give any notice is to submit to the Government party proof of the notice having 15 been given. 3.14. Prescribed provisions about notice (1) The regulations may make provision about the giving of notice under this Division including about -- (a) the information that must be included in a notice; and 20 (b) how the requirement to give notice -- (i) may be satisfied either generally or in particular types of cases; and (ii) may be satisfied in conjunction with the giving of notice under another written law that relates to 25 a Part 3 act. (2) Regulations of the kind referred to in subsection (1)(b)(ii) may be expressed to be made under section 7.1 and under powers conferred by another written law. page 41 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 3 Notices and objections s. 3.15 3.15. Right to object to doing of act (1) A person that is, in relation to any part of the relevant land -- (a) a registered native title body corporate; or (b) subject to subsection (2), a registered native title 5 claimant, may lodge an objection to the doing of a Part 3 act. (2) Subsection (1)(b) does not apply if there are one or more registered native title bodies corporate in relation to all of the relevant land. 10 3.16. Requirements for objections An objection must -- (a) be lodged with the Government party in accordance with the requirements of the relevant notice; (b) state the manner in which it is said that the doing of the 15 act would be likely to affect the objector's registered native title rights and interests in relation to the relevant land; and (c) comply with any other requirements of the regulations as to the form or content of objections. 20 3.17. Time limit (1) An objection to the doing of a Part 3 act cannot be lodged after the closing day. (2) Where, on the application of a person made before the closing day, the Commission is satisfied that exceptional circumstances 25 so require, the Commission may -- (a) fix a later closing day for the lodgment of objections to the doing of the act; and page 42 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Notices and objections Division 3 s. 3.18 (b) give such directions as the Commission thinks appropriate as to the giving of notice of the day so fixed. (3) If -- (a) on or before the closing day for a Part 3 act, a person 5 files a native title determination application under section 61 of the NTA; and (b) within one month after the closing day the person becomes a registered native title claimant, in relation to any part of the relevant land, the person may, 10 despite subsection (1), lodge an objection to the doing of the act within the period referred to in paragraph (b). (4) A person who files an application referred to in subsection (3) must, within 7 days of doing so, notify the Government party and any proponent in writing of that fact. 15 3.18. Government party to notify the Commission of objections (1) The Government party must notify -- (a) the Commission; and (b) any proponent, of the particulars of all objections lodged on or before the 20 closing day or in accordance with section 3.17(3). (2) Notification under subsection (1) of an objection must be given not later than 14 days after the lodgment of the objection. 3.19. Withdrawal of request etc. by proponent (1) The proponent in relation to a Part 3 act may give notice in 25 writing to -- (a) the Commission; (b) the other negotiation parties (if any); and page 43 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 4 Negotiations and agreements s. 3.20 (c) the Government party, that the proponent's request, application or submission for the doing of the act is withdrawn. (2) If there is more than one proponent a notice under 5 subsection (1) is of no effect unless it is given by all of the proponents jointly. (3) The giving of a notice under subsection (1) to all of the persons referred to in that subsection brings to an end any procedures that have begun under this Part. 10 3.20. Withdrawal of proposal by Government party (1) The application of section 3.19 extends to cases where -- (a) section 3.7 does not apply; and (b) a proponent has not been determined under section 3.8. (2) In that event -- 15 (a) a notice may be given by the Government party that the act will not be done; and (b) the provisions of section 3.19 apply with all necessary changes. Division 4 -- Negotiations and agreements 20 3.21. Meaning of "negotiation parties" (1) References in this Part to "negotiation parties" in relation to a Part 3 act are references -- (a) where section 3.7 applies, to -- (i) each proponent under that section; 25 (ii) each objector; and page 44 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Negotiations and agreements Division 4 s. 3.22 (iii) to the extent provided for by subsection (3), the Government party; or (b) where section 3.7 does not apply, to -- 5 (i) the Government party; (ii) each objector; and (iii) any person determined under section 3.8(2) to be a proponent but only so long as the person consents to being a negotiation party. 10 (2) Where section 3.7 applies to a Part 3 act, a proponent under that section or an objector may in writing -- (a) at any time request the Government party to be a negotiation party; or (b) request the Government party to be no longer a 15 negotiation party, in relation to that act. (3) So long as -- (a) a request by a proponent or objector under subsection (2)(a) has effect; and 20 (b) there has been no request by the same proponent or objector under subsection (2)(b), the Government party is a negotiation party in relation to the act concerned. 3.22. Negotiations 25 (1) The negotiation parties must negotiate in good faith with a view to -- (a) the objections to the doing of the act being withdrawn; or page 45 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 4 Negotiations and agreements s. 3.22 (b) obtaining the agreement of the objectors to -- (i) the doing of the act; or (ii) the doing of the act subject to conditions to be complied with by any of the negotiation parties. 5 (2) For the purposes of subsection (1), the other negotiation parties must give the objectors an opportunity to state, either orally or in writing, their views regarding the doing of the act. (3) Without limiting the scope of any negotiations, they may, if relevant, include the possibility of there being a condition that 10 has the effect that the objectors are to be entitled to payments worked out by reference to -- (a) the amount of profits made; (b) any income derived; or (c) any things produced, 15 by any other negotiation party as a result of doing anything in relation to the relevant land after the act is done. (4) Without limiting the scope of any negotiations, the nature and extent of the following may be taken into account -- (a) existing rights and interests in relation to the relevant 20 land that are not registered native title rights and interests; (b) existing use of the relevant land by persons other than the objectors; and (c) the practical effect of the exercise of -- 25 (i) those existing rights and interests; and (ii) that existing use, on the exercise of any registered native title rights and interests in relation to the relevant land. page 46 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Negotiations and agreements Division 4 s. 3.23 (5) The fact that a negotiation party refuses or fails to negotiate as mentioned in subsection (1) about matters unrelated to the effect of the act on the registered native title rights and interests of the objectors, does not mean that the negotiation party has not 5 negotiated in good faith for the purposes of that subsection. (6) The negotiation parties for the time being may begin negotiations even though the closing day in relation to the act concerned has not arrived. 3.23. Involvement of Commission, including mediation 10 (1) If any of the negotiation parties requests the Commission to do so, the Commission must mediate among the parties to assist in resolving the differences between them. (2) The negotiation parties must report to the Commission on progress made in the negotiations at such time or times as the 15 Commission may in writing direct. (3) If the Commission considers that the negotiation parties or any of them are not making sufficient attempts to reach an agreement the Commission is to use its best endeavours to have the parties negotiate as required by section 3.22(1). 20 3.24. Withdrawal of objection (1) At any time before a determination is made under Division 5 in relation to an objection the objector may withdraw the objection by notice in writing given to the Commission. (2) The Commission is to notify the negotiation parties of any such 25 withdrawal. 3.25. Agreement made by parties If at any time before any determination is made under Division 5 the negotiation parties make an agreement of the page 47 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 4 Negotiations and agreements s. 3.26 kind mentioned in section 3.22(1), they may give a copy of it to the Commission. 3.26. Commission's function in respect of an agreement (1) This section applies only if the Government party is not a 5 negotiation party. (2) Where a copy of an agreement is given to the Commission under section 3.25 it is to consider the agreement and either -- (a) accept the agreement if the Commission is satisfied as to the matters set out in subsection (3); or 10 (b) decline to accept the agreement if it is not so satisfied. (3) The matters as to which the Commission is to be satisfied are that -- (a) the negotiation parties have made the agreement; (b) the agreement has been properly executed; and 15 (c) no party has alleged, and proved to the Commission, that the party did not freely and voluntarily enter into the agreement. (4) If the Commission accepts the agreement it is to -- (a) give notice in writing of that fact to the parties and to the 20 Government party; and (b) give the Government party a copy of the agreement. 3.27. Effect of conditional agreement (1) An agreement that a Part 3 act may be done subject to conditions being complied with by the negotiation parties has 25 effect -- (a) if a copy of the agreement is given to the Commission under section 3.25 and is accepted by the Commission under section 3.26(2); and page 48 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Determinations Division 5 s. 3.28 (b) if the act is done, as if the conditions were terms of a contract among the negotiation parties. (2) Subsection (1) is in addition to -- 5 (a) any other effect that the agreement may have apart from this section; and (b) any condition that the Government party may impose in relation to the act in order to give effect to the agreement. 10 (3) If an objector is a registered native title claimant, any other person included in the native title claim group concerned is taken to be a negotiation party for the purposes only of this section. Division 5 -- Determinations 15 Subdivision 1 -- Ministerial determination where Commission determination unreasonably delayed 3.28. Responsible Minister may give Commission notice as to urgency (1) At any time later than 4 months after the Commission has given 20 a notice under section 3.39 in respect of a Part 3 act and before either -- (a) an agreement of the kind mentioned in section 3.22(1) has been -- (i) made by the negotiation parties; 25 (ii) given to the Commission under section 3.25; and (iii) accepted by the Commission under section 3.26(2); or page 49 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 5 Determinations s. 3.29 (b) the Commission has made a determination under section 3.44, the responsible Minister may give a written notice to the Commission requesting it to make such a determination within 5 the period specified in the notice. (2) The period must end at a time later than 6 months after the notice under section 3.39 was given. 3.29. Responsible Minister may make determination (1) The responsible Minister may, subject to section 3.30, make a 10 determination in respect of a Part 3 act if -- (a) the Commission has not made a determination in respect of the act within the period specified in a notice under section 3.28; (b) all objections to the doing of the act lodged under 15 section 3.15 have not been -- (i) withdrawn under section 3.24; or (ii) dismissed under section 3.41; (c) no agreement of the kind mentioned in section 3.22(1) has been -- 20 (i) made in relation to the act; (ii) given to the Commission under section 3.25; and (iii) accepted by the Commission under section 3.26(2); and 25 (d) the responsible Minister has complied with the requirements of sections 3.31, 3.32 and 3.33. (2) The determinations that the responsible Minister may make are -- (a) a determination that the act may be done; page 50 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Determinations Division 5 s. 3.30 (b) a determination that the act must not be done; or (c) a determination that the act may be done subject to conditions to be complied with by any of the negotiation parties. 5 (3) A determination must be made by the responsible Minister personally. 3.30. Grounds for making determination (1) The responsible Minister may only make a determination under section 3.29 if he or she considers that -- 10 (a) the Commission is unlikely to make its determination within a period that is reasonable having regard to all the circumstances; and (b) it is in the interests of the State to make the determination at the time. 15 (2) Subsection (1) does not prevent the responsible Minister from having regard to other matters in deciding whether to make a determination. 3.31. Consultation with Commonwealth Minister The responsible Minister may only make a determination of the 20 kind described in section 3.29(2)(a) or (c) after he or she has consulted the Commonwealth Minister about the determination. 3.32. Notice and submissions etc. (1) Before making a determination under section 3.29, the responsible Minister must give notice in accordance with this section. 25 (2) The responsible Minister must give written notice to the Commission requiring it, by the end of the day specified in the notice, to give to -- (a) the Minister; and page 51 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 5 Determinations s. 3.32 (b) each negotiation party, a summary of material that has been presented to the Commission in the course of the Commission considering whether to make a determination under section 3.44 in respect 5 of the act concerned. (3) The responsible Minister must give written notice to each negotiation party that the Minister is considering making the determination and that each negotiation party -- (a) may, by the end of the day specified in the notice, give 10 the Minister any submission or other material that the negotiation party wants the Minister to take into account in deciding whether to make the determination and, if so, its terms; (b) if the negotiation party does so, must also give each of 15 the other negotiation parties a copy of the submission or other material; and (c) may, within 7 days after the specified day, in response to any submission or other material given by -- (i) any other negotiation party; or 20 (ii) the Commission, give the Minister any further submission or other material that the negotiation party wants the Minister to take into account as mentioned in paragraph (a). (4) The day specified under subsection (2) or (3) must -- 25 (a) be the same in all of the notices given under the subsections; and (b) be a day by which, in the responsible Minister's opinion, it is reasonable to assume that all of the notices so given -- 30 (i) will have been received by; or page 52 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Determinations Division 5 s. 3.33 (ii) will otherwise have come to the attention of, the persons who must be so notified. (5) If the responsible Minister complies with this section, there is no requirement for any person to be given any further hearing 5 before the responsible Minister makes the determination. 3.33. Material etc. taken into account In making the determination, the responsible Minister -- (a) must take into account -- (i) any submission or material provided by any of 10 the negotiation parties in accordance with subsection (3) of section 3.32, but only if the negotiation party has complied with the requirements of paragraph (b) of that subsection; (ii) any report provided by the Commission; and 15 (iii) any consultations with the Commonwealth Minister under section 3.31; and (b) may, but need not, take into account any other matter or thing. 20 3.34. Minister's power not limited The fact that no submission or other material of the kind mentioned in section 3.32 has been given to the Minister before the end of the day specified in the notice does not prevent the Minister from making the determination. 25 3.35. No duty to make determination (1) The responsible Minister does not have a duty to make a determination under section 3.29. page 53 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 5 Determinations s. 3.36 (2) This is so despite -- (a) the giving of any notice by the Minister; (b) the giving of any submission or other material to the Minister; 5 (c) any request by a negotiation party for the responsible Minister to make the determination; and (d) any other circumstance. 3.36. Conditions to have contractual effect (1) Any provision in a determination under section 3.29 that the act 10 may be done subject to conditions being complied with by any of the negotiation parties has effect, if the act is done, as if the conditions were terms of a contract among the negotiation parties. (2) Subsection (1) is in addition to -- 15 (a) the effect that the determination has apart from this section; and (b) any condition that the Government party may impose in relation to the act in order to give effect to the determination. 20 (3) If an objector is a registered native title claimant, any other person included in the native title claim group concerned is taken to be a negotiation party for the purposes only of this section. 3.37. Copy of determination to be given 25 The responsible Minister must give a copy of any determination under section 3.29 to the negotiation parties and the Commission. page 54 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Determinations Division 5 s. 3.38 3.38. Copy of determination to be laid before Parliament (1) The responsible Minister must cause a copy of a determination under section 3.29, together with reasons for the determination, to be laid before each House of Parliament. 5 (2) Subsection (1) is to be complied with as soon as is practicable after the determination is made and in any case, in relation to a House of Parliament, within 15 sitting days of that House after the determination is made. Subdivision 2 -- Determination by Commission 10 3.39. Commission may notify intention to hear (1) The Commission may give notice to the negotiation parties that it intends to hear and determine objections to the doing of a Part 3 act -- (a) if -- 15 (i) an agreement of the kind mentioned in section 3.22(1) has not been -- (I) made by the negotiation parties; (II) given to the Commission under section 3.25; and 20 (III) accepted by the Commission under section 3.26(2); or (ii) all objections to the doing of the act have not been withdrawn; 25 and (b) if the Commission considers that any mediation requested under section 3.23(1) has been completed. page 55 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 5 Determinations s. 3.39 (2) A notice under subsection (1) in respect of a Part 3 act may be given by the Commission -- (a) of its own motion, but only after the expiry of the negotiation period; or 5 (b) on the application of a negotiation party made after the expiry of that period. (3) Before the Commission gives a notice under subsection (1) of its own motion, it must give the negotiation parties an opportunity to inform it whether the making of an agreement of 10 the kind mentioned in section 3.22(1) is imminent. (4) The Commission must grant an application made under subsection (2)(b) if -- (a) a determination has not been made under section 3.29; (b) the application -- 15 (i) complies with section 3.57; and (ii) is accompanied by the things required by section 3.58; and (c) the applicant has not been shown to be at fault. 20 (5) For the purposes of subsection (4)(c), an applicant is shown to be at fault if another negotiation party alleges to the Commission, and proves to its satisfaction, that the applicant did not negotiate in good faith as required by section 3.22(1). (6) Without limiting section 6.22, a notice under subsection (1) may 25 relate to more than one act and the objections to the doing of the act. (7) In this section -- "negotiation period" means the period beginning on the closing day and ending 4 months after that day. page 56 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Determinations Division 5 s. 3.40 3.40. Negotiations may continue Where the Commission -- (a) has given notice under section 3.39; but (b) has not made a determination, 5 in respect of a Part 3 act, the negotiation parties may continue to negotiate with a view to -- (c) bringing about an agreement of the kind mentioned in section 3.22(1); or (d) the withdrawal of the objections. 10 3.41. Dismissal of objections (1) The Commission must dismiss an objection if -- (a) it is not made by a registered native title body corporate or a registered native title claimant as required by section 3.15; or 15 (b) none of the rights and interests claimed to be affected by the doing of the act are registered native title rights and interests of the objector. (2) The Commission must notify an objector of the dismissal of his or her objection. 20 3.42. Time for making determination (1) The Commission must take all reasonable steps to make a determination under section 3.44 in respect of a Part 3 act within the period of 6 months ("the allowed period") starting when a notice under section 3.39 is given in respect of the act. 25 (2) If it appears to the Commission that it will not make a determination within the allowed period, the Commission may, before the end of the period, ask the responsible Minister to extend the period, and that Minister may comply with the request. page 57 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 5 Determinations s. 3.43 (3) An extended period may be further extended under subsection (2). (4) The Commission must not make a determination after the end of the allowed period or any extended period. 5 (5) Nothing in subsection (2) or (3) affects the operation of Subdivision 1. 3.43. No determination if agreement etc. The Commission must not make a determination in respect of a Part 3 act if -- 10 (a) all of the objections to the doing of the act have been withdrawn; (b) an agreement of the kind mentioned in section 3.22(1) has been -- (i) made by the negotiation parties; 15 (ii) given to the Commission under section 3.25; and (iii) accepted by the Commission under section 3.26(2); or (c) a determination has been made under section 3.29. 20 3.44. Making of determination (1) Subject to section 3.43, the Commission must make one of the following determinations -- (a) a determination that the act may be done; (b) a determination that the act may be done subject to 25 conditions specified in the determination to be complied with by any of the negotiation parties; (c) a determination that the act must not be done. page 58 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Determinations Division 5 s. 3.45 (2) The Commission may specify conditions under subsection (1)(b) only if they relate to the doing of the act as it affects registered native title rights and interests in relation to the relevant land. 5 (3) The Commission must not determine a condition under subsection (1)(b) that has the effect that an objector is to be entitled to payments worked out by reference to -- (a) the amount of profits made; (b) any income derived; or 10 (c) any things produced, by any other negotiation party as a result of doing anything in relation to the relevant land after the act is done. 3.45. Criteria for making determinations (1) In making its determination in respect of a Part 3 act, the 15 Commission must take into account the following -- (a) the effect of the act on -- (i) the enjoyment by the objectors of their registered native title rights and interests; (ii) the way of life, culture and traditions of any of 20 the objectors; (iii) the development of the social, cultural and economic structures of any of the objectors; (iv) the freedom of access by any of the objectors to the relevant land and their freedom to carry out 25 rites, ceremonies or other activities of cultural significance on the relevant land in accordance with their traditions; and (v) any area or site on the relevant land of particular significance to the objectors in accordance with 30 their traditions; page 59 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 5 Determinations s. 3.46 (b) the interests, proposals, opinions or wishes of the objectors in relation to the management, use or control of the relevant land in relation to which there are registered native title rights and interests of the objectors 5 that will be affected by the act; (c) the economic or other significance of the act to -- (i) Australia; (ii) this State; (iii) the area in which the relevant land is located; and 10 (iv) Aboriginal peoples who live in that area; (d) any public interest in the doing of the act; and (e) any other matter that the Commission considers relevant. (2) While taking into account the effect of a Part 3 act as mentioned 15 in subsection (1)(a), the Commission must also take into account the nature and extent of -- (a) existing rights and interests that are not native title rights and interests, in relation to the relevant land; and (b) existing use of the relevant land by persons other than 20 the objectors. (3) Taking into account the effect of a Part 3 act on areas or sites mentioned in subsection (1)(a)(v) does not affect the operation of any law of the Commonwealth or the State for the preservation or protection of those areas or sites. 25 3.46. Issues on which parties agree (1) Before making its determination, the Commission must ascertain whether the negotiation parties have an agreed position on any issues relevant to its determination. page 60 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Determinations Division 5 s. 3.47 (2) If there is any such issue, and all of the negotiation parties consent, the Commission in making its determination -- (a) must take that agreed position into account; and (b) need not take into account the matters mentioned in 5 section 3.45 to the extent that the matters relate to that issue. 3.47. Determination may provide for issues to be resolved later (1) A determination may, with the consent of the negotiation parties, provide that a particular matter that -- 10 (a) is not reasonably capable of being determined when the determination is made; and (b) is not directly relevant to the doing of the act, is to be the subject of further negotiations or to be determined in a specified manner. 15 (2) If -- (a) the manner specified is arbitration by some person or body other than the Commission; and (b) the negotiation parties do not agree about the manner in which the arbitration is to take place, 20 the Commission must determine the matter at an appropriate time. 3.48. No reopening of certain issues previously decided (1) If -- (a) the Commission is making a determination in respect of 25 a Part 3 act consisting of the creation of a right to mine in relation to an area; and (b) an agreement or a determination involving the same negotiation parties was previously made in respect of a page 61 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 5 Determinations s. 3.49 future act consisting of the creation of a right to mine in relation to the same area; and (c) an issue was decided in the agreement or during the proceedings before the Commission or an arbitral body, 5 the negotiation parties must not, without leave of the Commission, seek to vary the decision on the issue. (2) In subsection (1) -- "agreement" means an agreement of the kind mentioned in section 3.22(1) that is given to the Commission under 10 section 3.25 and accepted by it under section 3.26(2); "determination" means a determination by -- (a) the Commission under this Part; or (b) an arbitral body under the relevant provisions of the NTA; 15 "relevant provisions of the NTA" means the following provisions of Division 3 of Part 2 of the NTA -- (a) Subdivision B of that Division as in force immediately before the commencement of item 9 of Schedule 1 to the Native Title Amendment Act 1998 20 of the Commonwealth; and (b) Subdivision P of that Division. 3.49. Copy of determination to be given The Commission must give a copy of any determination under section 3.44 to the negotiation parties and the responsible 25 Minister. 3.50. Effect of conditional determination (1) A determination by the Commission that a Part 3 act may be done subject to conditions being complied with by the page 62 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Overruling of Commission's determination Division 6 s. 3.51 negotiation parties has effect, if the act is done, as if the conditions were terms of a contract among the negotiation parties. (2) Subsection (1) is in addition to -- 5 (a) the effect that the determination has apart from this section; and (b) any condition that the Government party may impose in relation to the act in order to give effect to the determination. 10 (3) If an objector is a registered native title claimant, any other person included in the native title claim group concerned is taken to be a negotiation party for the purposes only of this section. Division 6 -- Overruling of Commission's determination 15 3.51. Responsible Minister may overrule (1) Subject to section 3.53, the responsible Minister may, by writing given to the Commission, make a declaration in accordance with section 3.52. (2) A declaration cannot be made by the responsible Minister in 20 respect of a determination after 2 months have expired since the determination was made. (3) The Commission must give a copy of the declaration to the negotiation parties concerned. 3.52. Declarations that responsible Minister may make 25 (1) In the case of a determination under section 3.44(1)(a), the responsible Minister may make a declaration that the determination is overruled and a declaration either -- (a) that the act to which it relates must not be done; or page 63 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 6 Overruling of Commission's determination s. 3.53 (b) that the act to which it relates may be done subject to specified conditions to be complied with by any of the negotiation parties. (2) In the case of a determination under section 3.44(1)(b), the 5 responsible Minister may make a declaration that the determination is overruled and a declaration -- (a) that the act to which it relates must not be done; (b) that the act to which it relates may be done; or (c) that the act to which it relates may be done subject to 10 specified conditions to be complied with by any of the negotiation parties. (3) In the case of a determination under section 3.44(1)(c), the responsible Minister may make a declaration that the determination is overruled and a declaration either -- 15 (a) that the act to which it relates may be done; or (b) that the act to which it relates may be done subject to specified conditions to be complied with by any of the negotiation parties. (4) The responsible Minister may only specify conditions under this 20 section that relate to the doing of the act as it affects registered native title rights and interests in relation to the relevant land. (5) In this section -- "specified" means specified in the declaration. 3.53. Grounds on which declaration may be made 25 The responsible Minister may only make a declaration under section 3.51 on the grounds that it is in the interests of the State, or in the national interest, to do so. page 64 Native Title (State Provisions) Bill 1999 Right to negotiate procedures for areas not covered by Part 2 Part 3 Overruling of Commission's determination Division 6 s. 3.54 3.54. Conditions in declaration (1) A provision in a declaration by the responsible Minister under section 3.51 that a Part 3 act may be done subject to conditions being complied with by any of the negotiation parties has effect, 5 if the act is done, as if the conditions were terms of a contract among the negotiation parties. (2) Subsection (1) is in addition to the -- (a) effect that the declaration has apart from this section; and 10 (b) any condition that the Government party may impose in relation to the act in order to give effect to the declaration. (3) If an objector is a registered native title claimant, any other person included in the native title claim group concerned is 15 taken to be a negotiation party for the purposes only of this section. 3.55. Responsible Minister may declare intention not to overrule (1) The responsible Minister may by instrument given to the Commission declare that he or she does not intend to exercise 20 any power conferred by section 3.51 in respect of a particular determination. (2) If an instrument is given to the Commission under subsection (1) the responsible Minister -- (a) cannot revoke the instrument; and 25 (b) cannot exercise any power conferred by section 3.51 in respect of the determination in question. (3) The Commission is to notify the negotiation parties of the giving of an instrument to it under subsection (1). page 65 Native Title (State Provisions) Bill 1999 Part 3 Right to negotiate procedures for areas not covered by Part 2 Division 7 Applications s. 3.56 Division 7 -- Applications 3.56. Definition In this Division -- "application" means an application under section 3.39(2)(b). 5 3.57. Form and contents of application An application must -- (a) be made in accordance with the regulations; and (b) comply with the requirements of the regulations as to the form or content of applications. 10 3.58. Material and fees to accompany applications An application must be accompanied by any prescribed documents and any prescribed fee. 3.59. Application fee may be waived The Chief Commissioner may waive payment of the whole or 15 part of a fee payable by a person under section 3.58 where -- (a) in the Chief Commissioner's opinion, payment of the whole or part of the fee would cause financial hardship to the person; or (b) for any other reason the Chief Commissioner considers 20 it appropriate to do so. page 66 Native Title (State Provisions) Bill 1999 Consultation procedures for acts to which section 24MD(6B) Part 4 of the NTA applies Preliminary Division 1 s. 4.1 Part 4 -- Consultation procedures for acts to which section 24MD(6B) of the NTA applies Division 1 -- Preliminary 4.1. Object of this Part 5 The object of this Part is to make provisions that -- (a) supplement, so far as the legislative power of the Parliament permits, the provisions of subsection (6B) of section 24MD of the NTA; and (b) meet the State's obligation under paragraph (f) of that 10 subsection to ensure that objections to which that subsection applies are heard by an independent person or body. 4.2. Acts to which this Part applies This Part applies to a future act ("a Part 4 act") done by the 15 State that consists of -- (a) a permissible lease etc. renewal that comes within section 24ID(4)(a) and (b) of the NTA; (b) a compulsory acquisition to which section 24MD(6B)(a) of the NTA applies; or 20 (c) the creation or variation of a right to mine that is referred to in section 24MD(6B)(b) of the NTA. 4.3. Requirements to be satisfied before a Part 4 act is done (1) Before a Part 4 act is done the requirements of one of the paragraphs of subsection (2) must be satisfied in respect of the 25 act. page 67 Native Title (State Provisions) Bill 1999 Part 4 Consultation procedures for acts to which section 24MD(6B) of the NTA applies Division 1 Preliminary s. 4.3 (2) The requirements are -- (a) no objection is lodged under section 4.11 before the close of business on the closing day; (b) after the closing day, but immediately before the act is 5 done, there is no -- (i) registered native title body corporate; or (ii) registered native title claimant, in relation to any part of the relevant land; (c) all objections lodged under section 4.11 before the close 10 of business on the closing day are -- (i) withdrawn under section 4.20; or (ii) dismissed under section 4.24; (d) an agreement of the kind described in section 4.21 is made by the consultation parties and given to the 15 Commission under that section; (e) a recommendation is made that the act be done, or be done subject to conditions being complied with, and the recommendation -- (i) has not been overruled under section 4.33; and 20 (ii) is no longer capable of being overruled -- (I) because of section 4.33(2); or (II) because the responsible Minister has given an instrument to the Commission under section 4.38; 25 (f) a recommendation that the act not be done is overruled under section 4.33; or (g) a recommendation -- (i) that the act be done; or page 68 Native Title (State Provisions) Bill 1999 Consultation procedures for acts to which section 24MD(6B) Part 4 of the NTA applies Notices and objections Division 2 s. 4.4 (ii) that the act be done subject to conditions being complied with, is overruled under section 4.33 and a determination is made under that section that the act may be done subject 5 to conditions being complied with. (3) In subsection (2) -- "close of business" means the close of business of the Government party as specified in accordance with section 4.9(2)(f). 10 4.4. Other statutory requirements not affected Nothing in section 4.3, or in an agreement, recommendation or determination under this Part, authorizes the Government party to do a Part 4 act without complying with any requirements of another written law that apply to the doing of the act. 15 Division 2 -- Notices and objections 4.5. Proponent where act relates to mining Where the Part 4 act, if done, would create or vary a right to mine, the proponent for the purposes of this Part is the person who under the relevant written law is the applicant for the right 20 to mine or the variation. 4.6. Identification of proponents in other cases (1) This section applies where the Part 4 act is not covered by section 4.5. (2) The Government party is to determine the person or persons (if 25 any) who, because of an application, request or submission made by the person or persons for the act to be done, are to be treated as the proponent or proponents in relation to the act for the purposes of this Part. page 69 Native Title (State Provisions) Bill 1999 Part 4 Consultation procedures for acts to which section 24MD(6B) of the NTA applies Division 2 Notices and objections s. 4.7 (3) The Government party may amend a determination under subsection (2). (4) The Government party must give notice in writing to each proponent of -- 5 (a) a determination under subsection (2); and (b) any amendment of a determination, relating to that proponent. (5) If there is any other consultation party in relation to the act at the time when a notice is given under subsection (4) the 10 Government party must give a copy of the notice to each other consultation party. 4.7. Closing day for objections (1) The Government party is to fix, for every Part 4 act, a closing day for the lodgment of objections to the doing of the act. 15 (2) The Government party may fix a later closing day for the lodgment of objections to the doing of a Part 4 act if the Government party is satisfied that it has not been reasonably practicable for section 4.9(1) to be complied with in respect of the act. 20 4.8. Notification of acts by Government party Before a Part 4 act is done, the Government party must give notice in writing of the act to -- (a) any registered native title body corporate in relation to any of the relevant land; 25 (b) any registered native title claimant in relation to any of the relevant land; and (c) any representative body for an area that includes any of the relevant land. page 70 Native Title (State Provisions) Bill 1999 Consultation procedures for acts to which section 24MD(6B) Part 4 of the NTA applies Notices and objections Division 2 s. 4.9 4.9. Further provision as to notices (1) The notices required by section 4.8 must be given at least 2 months before the closing day. (2) Every notice must show -- 5 (a) a clear description of the land or waters to which the act relates; (b) a description of the nature of the act; (c) the title of the Government party who -- (i) would do the act; and 10 (ii) will receive objections; (d) the address at which objections may be lodged and the postal address to which they may be sent; (e) the closing day; (f) the time of close of business of the Government party on 15 the closing day; (g) the name and address of any person who is a proponent under section 4.5 or is determined to be a proponent under section 4.6(2); (h) how further information about the act can be obtained; 20 and (i) any other information that is prescribed for the purposes of section 4.10(1)(a). (3) The particulars referred to in subsection (2)(c), (d) and (f) are to be as determined by the Government party. 25 4.10. Prescribed provisions about notice (1) The regulations may make provision about the giving of notice under this Division including about -- (a) the information that must be included in a notice; and page 71 Native Title (State Provisions) Bill 1999 Part 4 Consultation procedures for acts to which section 24MD(6B) of the NTA applies Division 2 Notices and objections s. 4.11 (b) how the requirement to give notice -- (i) may be satisfied either generally or in particular types of cases; and (ii) may be satisfied in conjunction with the giving 5 of notice under another written law that relates to a Part 4 act. (2) Regulations of the kind referred to in subsection (1)(b)(ii) may be expressed to be made under section 7.1 and under powers conferred by another written law. 10 4.11. Right to object to doing of act (1) A person that is, in relation to any part of the relevant land -- (a) a registered native title body corporate; or (b) subject to subsection (3), a registered native title claimant, 15 may lodge an objection to the doing of a Part 4 act. (2) An objection may be lodged only on the ground that the doing of the act in relation to the relevant land would affect the person's registered native title rights and interests in relation to that land. 20 (3) Subsection (1)(b) does not apply if there are one or more registered native title bodies corporate in relation to all of the relevant land. 4.12. Requirements for objections An objection must -- 25 (a) be lodged with the Government party in accordance with the requirements of the relevant notice; page 72 Native Title (State Provisions) Bill 1999 Consultation procedures for acts to which section 24MD(6B) Part 4 of the NTA applies Notices and objections Division 2 s. 4.13 (b) state the manner in which it is said that the doing of the act would be likely to affect the objector's registered native title rights and interests in relation to the relevant land; and 5 (c) comply with any other requirements of the regulations as to the form or content of objections. 4.13. Time limit (1) An objection to the doing of a Part 4 act cannot be lodged after the closing day. 10 (2) Where, on the application of a person made before the closing day, the Commission is satisfied that exceptional circumstances so require, the Commission may -- (a) fix a later closing day for the lodgment of objections to the doing of the act; and 15 (b) give such directions as the Commission thinks appropriate as to the giving of notice of the day so fixed. 4.14. Government party to notify the Commission of objections (1) The Government party must notify -- (a) the Commission; and 20 (b) any proponent, of the particulars of all objections to the doing of a Part 4 act lodged on or before the closing day. (2) Notification under subsection (1) of an objection must be given not later than 14 days after the lodgment of the objection. 25 4.15. Withdrawal of request etc. by proponent (1) The proponent in relation to a Part 4 act may give notice in writing to -- (a) the Commission; page 73 Native Title (State Provisions) Bill 1999 Part 4 Consultation procedures for acts to which section 24MD(6B) of the NTA applies Division 3 Consultation and agreements s. 4.16 (b) the other consultation parties (if any); and (c) the Government party, that the proponent's application, request or submission for the doing of the act is withdrawn. 5 (2) If there is more than one proponent a notice under subsection (1) is of no effect unless it is given by all of the proponents jointly. (3) The giving of a notice under subsection (1) to all of the persons referred to in that subsection brings to an end any procedures 10 that have begun under this Part. 4.16. Withdrawal of proposal by Government party (1) The application of section 4.15 extends to cases where -- (a) section 4.5 does not apply; and (b) a proponent has not been determined under 15 section 4.6(2). (2) In that event -- (a) a notice may be given by the Government party that the act will not be done; and (b) the provisions of section 4.15 apply with all necessary 20 changes. Division 3 -- Consultation and agreements 4.17. Meaning of "consultation parties" References in this Part to "consultation parties" in relation to a Part 4 act are references to -- 25 (a) each proponent under section 4.5 and each objector; or (b) where section 4.5 does not apply -- (i) the Government party; page 74 Native Title (State Provisions) Bill 1999 Consultation procedures for acts to which section 24MD(6B) Part 4 of the NTA applies Consultation and agreements Division 3 s. 4.18 (ii) each objector; and (iii) any person determined under section 4.6(2) to be a proponent but only so long as the person consents to being a consultation party. 5 4.18. Consultation (1) The consultation parties must consult with each other in good faith about ways of minimizing the impact of the act on registered native title rights and interests in relation to the relevant land, including about -- 10 (a) any access to the land or waters; or (b) the way in which any thing authorized by the act may be done, with a view to bringing about the withdrawal of the objections. (2) The consultation parties for the time being may begin 15 consultations even though the closing day for the act concerned has not arrived. 4.19. Involvement of Commission, including mediation (1) If any of the consultation parties requests the Commission to do so, the Commission must mediate among the parties to assist in 20 resolving the differences between them on the relevant matters mentioned in section 4.18. (2) The consultation parties must report to the Commission on progress made in the consultations at such time or times as the Commission may in writing direct. 25 (3) If the Commission considers that the consultation parties or any of them are not making sufficient attempts to resolve their differences the Commission is to use its best endeavours -- (a) to have the parties consult together as required by section 4.18; and page 75 Native Title (State Provisions) Bill 1999 Part 4 Consultation procedures for acts to which section 24MD(6B) of the NTA applies Division 4 Recommendations of the Commission s. 4.20 (b) to bring about -- (i) a resolution of the differences between them on the relevant matters mentioned in section 4.18; or (ii) the withdrawal of the objections. 5 4.20. Withdrawal of objection (1) At any time before a recommendation is made under Division 4 in relation to an objection the objector may withdraw the objection by notice in writing given to the Commission. (2) The Commission is to notify the consultation parties of any such 10 withdrawal. 4.21. Agreement made by parties If at any time before a recommendation is made under Division 4 the consultation parties make an agreement that resolves the issues on which the objections were based, they 15 may give a copy of it to the Commission. Division 4 -- Recommendations of the Commission 4.22. Commission may notify intention to hear (1) The Commission may, after the consultation period for a Part 4 act has expired, give notice to the consultation parties that it 20 intends to hear and determine objections to the doing of the act -- (a) if -- (i) all of the objections have not been withdrawn; or (ii) an agreement of the kind described in 25 section 4.21 has not been made between the consultation parties and given to the Commission under that section; and page 76 Native Title (State Provisions) Bill 1999 Consultation procedures for acts to which section 24MD(6B) Part 4 of the NTA applies Recommendations of the Commission Division 4 s. 4.23 (b) if the Commission considers that any mediation requested under section 4.19(1) has been completed. (2) A notice under subsection (1) in respect of a Part 4 act may be given by the Commission -- 5 (a) of its own motion; or (b) on the application of a consultation party. (3) The Commission must grant an application made under subsection (2)(b) if the application complies with section 4.40 and is accompanied by the things required by section 4.41. 10 (4) Without limiting section 6.22, a notice under subsection (1) may relate to more than one act and the objections to the doing of the act. (5) In this section -- "consultation period" means the period beginning on the 15 closing day and ending 4 months after that day. 4.23. Consultations may continue Where the Commission -- (a) has given notice under section 4.22; but (b) has not made a recommendation, 20 in respect of a Part 4 act, the consultation parties may continue to consult together with a view to bringing about -- (c) a resolution of the issues on which the objections are based; and (d) the withdrawal of the objections. page 77 Native Title (State Provisions) Bill 1999 Part 4 Consultation procedures for acts to which section 24MD(6B) of the NTA applies Division 4 Recommendations of the Commission s. 4.24 4.24. Dismissal of objections (1) The Commission must dismiss an objection if -- (a) it is not made by a registered native title body corporate or a registered native title claimant as required by 5 section 4.11(1); or (b) none of the rights and interests claimed to be affected by the doing of the act are registered native title rights and interests of the objector. (2) The Commission must notify an objector of the dismissal of his 10 or her objection. 4.25. Time for making recommendation (1) Subject to section 4.26, the Commission must take all reasonable steps to make a recommendation in respect of a Part 4 act within the period of 4 months ("the allowed period") 15 starting when a notice under section 4.22 is given in respect of the act. (2) If it appears to the Commission that it will not make a recommendation within the allowed period, the Commission may before the end of the period ask the responsible Minister to 20 extend the period, and that Minister may comply with the request. (3) An extended period may be further extended under subsection (2). 4.26. No recommendation if agreement etc. 25 The Commission must not make a recommendation in respect of a Part 4 act if -- (a) all of the objections to the doing of the act have been withdrawn; or page 78 Native Title (State Provisions) Bill 1999 Consultation procedures for acts to which section 24MD(6B) Part 4 of the NTA applies Recommendations of the Commission Division 4 s. 4.27 (b) an agreement of the kind described in section 4.21 has been made between the consultation parties and given to the Commission under that section. 4.27. Making of recommendation 5 (1) Except where section 4.26 applies, the Commission must make one of the following recommendations -- (a) that the act be done; (b) that the act be done subject to specified conditions being complied with by any of the consultation parties; 10 (c) that the act not be done. (2) The Commission may specify conditions under subsection (1)(b) only if they relate to the doing of the act as it affects registered native title rights and interests in relation to the relevant land. 15 4.28. Criteria for making recommendations (1) In making its recommendation in respect of any Part 4 act, the Commission must -- (a) take into account the impact of the act on registered native title rights and interests of the objectors in 20 relation to the relevant land; and (b) unless it recommends that the act not be done, consider ways in which that impact can be minimized. (2) In addition, in making its recommendation in respect of a Part 4 act that is not a compulsory acquisition that comes within 25 section 24MD(6B)(a) of the NTA, the Commission must consider questions of -- (a) access to the relevant land; and (b) the way in which any thing authorized by the act may be done. page 79 Native Title (State Provisions) Bill 1999 Part 4 Consultation procedures for acts to which section 24MD(6B) of the NTA applies Division 4 Recommendations of the Commission s. 4.29 (3) The Commission must also take into account the nature and extent of -- (a) existing rights and interests that are not native title rights and interests, in relation to the relevant land; and 5 (b) existing use of the relevant land by persons other than the objectors. 4.29. Issues on which parties agree (1) Before making its recommendation, the Commission must ascertain whether the consultation parties have an agreed 10 position on any issues relevant to its recommendation. (2) If there is any such issue, and all of the consultation parties consent, the Commission in making its recommendation -- (a) must take that agreed position into account; and (b) need not take into account the matters mentioned in 15 section 4.28, to the extent that the matters relate to that issue. 4.30. Copy of recommendation to be given The Commission must give a copy of any recommendation under section 4.27 to the consultation parties and the 20 responsible Minister. 4.31. Effect of recommendation A recommendation must be complied with by the Government party unless it is overruled by a determination of the responsible Minister under section 4.33. 25 4.32. Effect of recommendation that specifies conditions (1) A recommendation by the Commission that a Part 4 act may be done subject to conditions being complied with by the page 80 Native Title (State Provisions) Bill 1999 Consultation procedures for acts to which section 24MD(6B) Part 4 of the NTA applies Overruling of recommendations Division 5 s. 4.33 consultation parties has effect, if the act is done, as if the conditions were terms of a contract among the consultation parties. (2) Subsection (1) is in addition to -- 5 (a) the effect that the recommendation has under section 4.31; and (b) any condition that the Government party may impose in relation to the act in order to give effect to the recommendation. 10 (3) If an objector is a registered native title claimant, any other person included in the native title claim group concerned is taken to be a consultation party for the purposes only of this section. Division 5 -- Overruling of recommendations 15 4.33. Responsible Minister may overrule a recommendation (1) Subject to sections 4.35 and 4.36, the responsible Minister may, by writing given to the Commission, make a determination in accordance with section 4.34. (2) A determination cannot be made by the responsible Minister in 20 respect of a recommendation after 2 months have expired since the recommendation was made. (3) The Commission must give a copy of the determination to the consultation parties concerned. 4.34. Determinations that responsible Minister may make 25 (1) In the case of a recommendation under section 4.27(1)(a), the responsible Minister may make a determination that the recommendation is overruled and either -- (a) that the act to which it relates must not be done; or page 81 Native Title (State Provisions) Bill 1999 Part 4 Consultation procedures for acts to which section 24MD(6B) of the NTA applies Division 5 Overruling of recommendations s. 4.35 (b) that the act to which it relates may be done subject to specified conditions to be complied with by any of the consultation parties. (2) In the case of a recommendation under section 4.27(1)(b), the 5 responsible Minister may make a determination that the recommendation is overruled and -- (a) that the act to which it relates must not be done; (b) that the act to which it relates may be done; or (c) that the act to which it relates may be done subject to 10 specified conditions to be complied with by any of the consultation parties. (3) In the case of a recommendation under section 4.27(1)(c), the responsible Minister may make a determination that the recommendation is overruled and either -- 15 (a) that the act to which it relates may be done; or (b) that the act to which it relates may be done subject to specified conditions to be complied with by any of the consultation parties. (4) The responsible Minister may only specify conditions under this 20 section that relate to the doing of the act as it affects registered native title rights and interests in relation to the relevant land. (5) In this section -- "specified" means specified in the determination. 4.35. Consultation before making of determination 25 (1) This section applies if the effect of the responsible Minister's determination under section 4.33 is that the act may be done -- (a) unconditionally; (b) subject to conditions being complied with; or page 82 Native Title (State Provisions) Bill 1999 Consultation procedures for acts to which section 24MD(6B) Part 4 of the NTA applies Overruling of recommendations Division 5 s. 4.36 (c) subject to conditions being complied with that are different in any respect from the conditions specified in the recommendation that is overruled. (2) If this section applies, the responsible Minister may only make a 5 determination under section 4.33 after he or she has -- (a) consulted the State Minister principally responsible for indigenous affairs about -- (i) the Commission's recommendation; and (ii) any determination that the responsible Minister 10 may make; and (b) taken into account any recommendation or advice made or given by that Minister. (3) Before the consultations referred to in subsection (2) are held, 15 the State Minister principally responsible for indigenous affairs is to be given -- (a) by the Commission, any submission or other material that was put before it in relation to the recommendation in question; and 20 (b) by the responsible Minister, any submission or other material that has been put before him or her for the purposes of the determination in question. (4) The duty imposed by subsection (3)(b) applies subject to any direction given by the Commission under section 6.29. 25 4.36. Ground on which determination may be made (1) The responsible Minister may only make a determination under section 4.33 on the ground that it is in the interests of the State to do so. page 83 Native Title (State Provisions) Bill 1999 Part 4 Consultation procedures for acts to which section 24MD(6B) of the NTA applies Division 5 Overruling of recommendations s. 4.37 (2) In subsection (1) -- "in the interests of the State" includes -- (a) for the social or economic benefit of the State (including of Aboriginal peoples); and 5 (b) in the interests of the relevant region or locality in the State. 4.37. Conditions in determination (1) A provision in a determination by the responsible Minister under section 4.33 that a Part 4 act may be done subject to 10 conditions being complied with by any of the consultation parties has effect, if the act is done, as if the conditions were terms of a contract among the consultation parties. (2) Subsection (1) is in addition to -- (a) the effect that the determination has apart from this 15 section; and (b) any condition that the Government party may impose in relation to the act in order to give effect to the determination. (3) If an objector is a registered native title claimant, any other 20 person included in the native title claim group concerned is taken to be a consultation party for the purposes only of this section. 4.38. Responsible Minister may declare intention not to overrule (1) The responsible Minister may by instrument given to the 25 Commission declare that he or she does not intend to exercise any power conferred by section 4.33 in respect of a particular recommendation. page 84 Native Title (State Provisions) Bill 1999 Consultation procedures for acts to which section 24MD(6B) Part 4 of the NTA applies Applications Division 6 s. 4.39 (2) If an instrument is given to the Commission under subsection (1) the responsible Minister -- (a) cannot revoke the instrument; and (b) cannot exercise any power conferred by section 4.33 in 5 respect of the recommendation concerned. (3) The Commission is to notify the consultation parties of the giving of an instrument to it under subsection (1). Division 6 -- Applications 4.39. Definition 10 In this Division -- "application" means an application under section 4.22(2)(b). 4.40. Form and contents of application An application must -- (a) be made in accordance with the regulations; and 15 (b) comply with the requirements of the regulations as to the form or content of applications. 4.41. Material and fees to accompany applications An application must be accompanied by any prescribed documents and any prescribed fee. 20 4.42. Application fee may be waived The Chief Commissioner may waive payment of the whole or part of a fee payable by a person under section 4.41 where -- (a) in the Chief Commissioner's opinion, payment of the whole or part of the fee would cause financial hardship 25 to the person; or (b) for any other reason the Chief Commissioner considers it appropriate to do so. page 85 Native Title (State Provisions) Bill 1999 Part 5 Provisions relating to compensation Division 1 Preliminary s. 5.1 Part 5 -- Provisions relating to compensation Division 1 -- Preliminary 5.1. Definition In this Part, other than in section 5.2(1) and 5.2(2) -- 5 "native title holders", in relation to a Part 2 act, a Part 3 act or a Part 4 act, means the persons who -- (a) hold native title; or (b) immediately before the act was done, held native title, 10 in relation to the land affected by the act, but only if there has been an approved determination of native title to that effect, which includes the following cases if the act concerned is a compulsory acquisition -- (c) where it is apparent from the terms of, or reasons for, 15 the determination that the persons held native title immediately before the acquisition; or (d) where it is not apparent from the terms of, or reasons for, the determination that native title did not exist immediately before the acquisition. 20 Division 2 -- Determination of compensation 5.2. Commission to determine compensation for certain acts (1) This section applies where a Part 2 act, a Part 3 act or a Part 4 act is done, other than an act that is a compulsory acquisition of native title rights and interests for which the native title holders 25 in relation to the relevant land are entitled to compensation under the Land Administration Act 1997. page 86 Native Title (State Provisions) Bill 1999 Provisions relating to compensation Part 5 Determination of compensation Division 2 s. 5.2 (2) The native title holders are entitled to compensation on just terms under this section for any loss, diminution or impairment of, or other effect of the act on, their native title rights and interests. 5 (3) The principles set out in Division 3 apply to a determination of compensation under this section. (4) The Commission, on application made -- (a) is to determine the amount of any such compensation and the native title holders entitled to receive it; and 10 (b) may make such orders as it considers appropriate, including orders as to costs and other ancillary matters. (5) The compensation is recoverable -- (a) from any person who is made liable for the compensation by a written law; or 15 (b) to the extent that -- (i) no such liability is provided for; or (ii) an order under subsection (6) so provides, from the Crown. (6) If, on application made, the Commission is satisfied that -- 20 (a) a person who is made liable as mentioned in subsection (5)(a) no longer exists; or (b) there is no reasonable prospect of the compensation, or part of it, being recovered from that person, the Commission may order that the compensation, or the part in 25 question, is recoverable from the Crown. (7) If compensation is recovered from the Crown because of an order under subsection (6), the Crown is subrogated to the rights that the native title holders concerned had against the person page 87 Native Title (State Provisions) Bill 1999 Part 5 Provisions relating to compensation Division 2 Determination of compensation s. 5.3 referred to in that subsection in relation to the recovery of the amount paid. (8) An application under subsection (4) or (6) is to be made -- (a) by the native title holders concerned; or 5 (b) on their behalf, by a native title holder concerned or a registered native title body corporate, and is to be made in accordance with any requirements of the regulations. 5.3. Enforcement of order for compensation 10 (1) Where compensation is recoverable by or on behalf of a native title holder by virtue of an order under section 5.2, the Chief Commissioner, on application by or on behalf of the native title holder, is to issue a certified copy of the order. (2) If the certified copy is lodged with the clerk or registrar of a 15 court in accordance with the rules of court, the clerk or registrar is to register the order. (3) The order when registered may be enforced as if it were an order made by the court. (4) In this section -- 20 "court" means -- (a) a Local Court, if the order would be within the monetary limit of the jurisdiction of a Local Court in respect of the recovery of debts; (b) if paragraph (a) does not apply, the District Court, if 25 the order would be within the monetary limit of the jurisdiction of that Court in respect of the recovery of debts; or (c) otherwise, the Supreme Court. page 88 Native Title (State Provisions) Bill 1999 Provisions relating to compensation Part 5 Principles to be applied in the determination of compensation Division 3 s. 5.4 Division 3 -- Principles to be applied in the determination of compensation 5.4. No multiple compensation for essentially same act Compensation under this Part -- 5 (a) is only payable once for acts that are essentially the same; and (b) is to be determined taking into account any compensation awarded under another written law, or the NTA, for essentially the same act. 10 5.5. Compensation principles to be as for ordinary title The Commission in determining compensation for an act under this Part must, subject to sections 5.6 and 5.7, have regard to any principles or criteria for determining compensation set out in a written law that would apply to the determination if the 15 native title holders instead held ordinary title to any land or waters concerned and to the land adjoining or surrounding any waters concerned. 5.6. Compensation to be monetary Subject to section 5.7, compensation may only consist of the 20 payment of money. 5.7. Requests for non-monetary compensation (1) If the person claiming compensation under this Part requests that the whole or part of the compensation should consist of the transfer of property or the provision of goods or services, the 25 Commission -- (a) must consider the request; and (b) may, instead of determining the whole or any part of the compensation, recommend that the person liable to give page 89 Native Title (State Provisions) Bill 1999 Part 5 Provisions relating to compensation Division 4 Determination of amounts to be held in trust and payment of those amounts s. 5.8 the compensation should, within a specified period, transfer property or provide goods or services in accordance with the recommendation. (2) If the person does not transfer the property or provide the goods 5 or services in accordance with the recommendation, the person claiming compensation may request the Commission to determine instead that the whole or the part of the compensation concerned is to consist of the payment of money. (3) If the person does transfer the property or provide the goods or 10 services in accordance with the recommendation -- (a) the transfer of the property or provision of the goods or services constitutes full or part compensation for the act, as the case may be; and (b) the entitlement to compensation is taken to have been 15 determined in accordance with the provisions of this Part. Division 4 -- Determination of amounts to be held in trust and payment of those amounts 5.8. Conditions for payment of amounts to be held in trust 20 (1) This section applies to a condition in one of the following instruments -- (a) a determination by the responsible Minister under section 3.29; (b) a determination by the Commission under section 3.44; 25 and (c) a declaration by the responsible Minister under section 3.51. page 90 Native Title (State Provisions) Bill 1999 Provisions relating to compensation Part 5 Determination of amounts to be held in trust and payment of Division 4 those amounts s. 5.9 (2) If a condition is that an amount is to be paid and held in trust until it is dealt with in accordance with section 5.9 -- (a) the Commission must determine the amount; and (b) the amount, when paid, must be held in trust in 5 accordance with the regulations until it is dealt with in accordance with that section. 5.9. How amounts held in trust to be dealt with The relevant provisions of sections 5.10 to 5.15 apply if an amount ("the trust amount") in respect of an act is being held 10 in trust in accordance with a condition referred to in section 5.8(2) and any of the following happens -- (a) an approved determination of native title is made to the effect that there is no native title in relation to the area concerned immediately before the act takes place; 15 (b) the Government party informs the trustee in writing that it is not going to do the act; (c) the following requirements are satisfied -- (i) an approved determination of native title is made to the effect that the persons concerned are 20 (disregarding any holding of the native title in trust under Part 2 Division 6 of the NTA) the native title holders in relation to the area affected by the act; (ii) the registered native title body corporate advises 25 the trustee that it wishes to accept the trust amount instead of any compensation to which the native title holders may be entitled for the act under this Act or another written law; and (iii) the person who paid the trust amount advises the 30 trustee that the person agrees to the registered native title body corporate accepting the trust page 91 Native Title (State Provisions) Bill 1999 Part 5 Provisions relating to compensation Division 4 Determination of amounts to be held in trust and payment of those amounts s. 5.10 amount instead of any compensation to which the native title holders may be entitled for the act under this Act or another written law; (d) a determination is made, on a claim for compensation in 5 respect of the act, that a person is entitled to compensation, or that no compensation is payable to any person; (e) none of paragraphs (a), (b), (c) and (d) applies and the Commission determines, on application by any person, 10 that it would be just and equitable in all the circumstances to pay the trust amount to that person or another person. 5.10. Section 5.9(a) or (b) cases Where section 5.9(a) or (b) applies, the trustee must -- 15 (a) repay the trust amount to the person who paid it to the trustee; or (b) if that person no longer exists, apply to the Commission for a direction as to the payment of the trust amount. 5.11. Section 5.9(c) cases 20 Where section 5.9(c) applies -- (a) the trustee must pay the trust amount to the body corporate; and (b) subject to section 53 of the NTA, there is no further entitlement to compensation for the act. 25 5.12. Section 5.9(d) cases where monetary compensation Where section 5.9(d) applies and the determination is that a person is entitled to an amount of monetary compensation -- page 92 Native Title (State Provisions) Bill 1999 Provisions relating to compensation Part 5 Determination of amounts to be held in trust and payment of Division 4 those amounts s. 5.13 (a) if the trust amount is the same as the amount determined, the trustee must pay the trust amount to the person; (b) if the trust amount is less than the amount determined, 5 the trustee must pay the trust amount to the person and the Government party must pay the shortfall to the person; or (c) if the trust amount is more than the amount determined, the trustee must -- 10 (i) pay the person so much of the trust amount as equals the amount determined; and (ii) refund the excess to the person who paid the trust amount to the trustee or, if that person no longer exists, apply to the Commission for a direction as 15 to its payment. 5.13. Section 5.9(d) cases where non-monetary compensation Where section 5.9(d) applies and -- (a) the transfer of property; or (b) the provision of goods or services, 20 constitutes some or all of the compensation, the trustee must apply to the Commission for a direction as to the payment of the trust amount. 5.14. Section 5.9(d) cases where no compensation Where section 5.9(d) applies and the determination is that no 25 compensation is payable or to be given to any person, the trustee must repay the trust amount to the person who paid it to the trustee or, if that person no longer exists, apply to the Commission for a direction as to its payment. page 93 Native Title (State Provisions) Bill 1999 Part 5 Provisions relating to compensation Division 4 Determination of amounts to be held in trust and payment of those amounts s. 5.15 5.15. Section 5.9(e) cases Where paragraph (e) of section 5.9 applies, the trustee must pay the trust amount in accordance with the decision of the Commission mentioned in that paragraph. 5 5.16. Jurisdiction of the Commission under this Division The Commission has jurisdiction -- (a) to hear and determine the applications referred to in sections 5.9(e), 5.10(b), 5.12(c)(ii), 5.13 and 5.14; and (b) to make such orders in the proceedings as it considers 10 appropriate. page 94 Native Title (State Provisions) Bill 1999 Native Title Commission Part 6 Commission established Division 1 s. 6.1 Part 6 -- Native Title Commission Division 1 -- Commission established 6.1. Establishment of Commission The Native Title Commission of Western Australia is 5 established. 6.2. Functions of Commission (1) The functions of the Commission are -- (a) to exercise the jurisdiction and to perform the functions given to it by this Act; and 10 (b) to perform any function that may be given to it by any other written law. (2) The Commission may do all things that are necessary or convenient to be done for the performance of its functions. 6.3. Requirements for fairness etc. to be observed 15 The Commission is to -- (a) perform its functions fairly, justly and expeditiously; and (b) ensure that, subject to this Act, its procedures are informal and accessible. 20 6.4. Membership of the Commission (1) The Commission is to comprise -- (a) a Chief Commissioner; and (b) such number of other members as the Governor considers necessary for the proper performance of the 25 Commission's functions. page 95 Native Title (State Provisions) Bill 1999 Part 6 Native Title Commission Division 1 Commission established s. 6.5 (2) All of the members are to be appointed by the Governor. (3) The Chief Commissioner is to be appointed on a full-time basis. (4) An ordinary member may be appointed on either a full-time basis or a part-time basis. 5 6.5. Eligibility for appointment as Chief Commissioner A person is not eligible to be appointed as the Chief Commissioner unless the person has been enrolled for at least 5 years as a legal practitioner of -- (a) the Supreme Court; 10 (b) the High Court; or (c) the Supreme Court of another State or of a Territory. 6.6. Appointment of member of NNTT Not less than one of the ordinary members is to be a person who holds an appointment under the NTA as a member of the 15 NNTT. 6.7. Qualifications for appointment Without limiting section 6.6, a person must not be appointed as an ordinary member unless the person -- (a) has been enrolled for at least 5 years as a legal 20 practitioner of -- (i) the Supreme Court; (ii) the High Court; or (iii) the Supreme Court of another State or of a Territory; 25 or page 96 Native Title (State Provisions) Bill 1999 Native Title Commission Part 6 Commission established Division 1 s. 6.8 (b) has, in the opinion of the Governor, expertise in one or more of the following -- (i) matters relating to Aboriginal peoples; (ii) land and resource management; 5 (iii) dispute resolution; (iv) any other class of matter considered by the Governor to be substantially relevant to the duties of a member. 6.8. Ordinary members, notice of proposed appointment 10 (1) Where it is proposed to appoint any person as an ordinary member, the Minister must give notice of the proposal in -- (a) the Gazette; and (b) a daily newspaper circulating generally throughout the State, 15 and may give notice in such other newspapers, journals or electronic media as the Minister considers appropriate. (2) A notice referred to in subsection (1) must -- (a) set out the qualifications required by section 6.7 for appointment as an ordinary member; 20 (b) invite persons or organizations who wish to do so to nominate, in the manner specified in the notice, persons for consideration as appointees; and (c) invite persons who wish to do so to inform the Minister, in the manner specified in the notice, that they are 25 interested in becoming an ordinary member. (3) This section does not apply to an appointment for the purposes of section 6.6. page 97 Native Title (State Provisions) Bill 1999 Part 6 Native Title Commission Division 1 Commission established s. 6.9 6.9. Administrative functions of Chief Commissioner In addition to the functions given to the Chief Commissioner by particular provisions of this Act, he or she -- (a) is responsible for managing the administrative affairs of 5 the Commission; and (b) may do all things necessary or convenient to be done for that purpose. 6.10. Authorization of Chief Commissioner for purposes of section 199F of the NTA 10 (1) The object of this section is to make provision for delegation to the Chief Commissioner by the Native Title Registrar under the power conferred by section 199F of the NTA. (2) The State Minister may on behalf of the State agree to any delegation referred to in subsection (1) and the Chief 15 Commissioner may exercise powers in accordance with the delegation. 6.11. Delegation to members (1) The Chief Commissioner may, by signed instrument, delegate to one or more of the ordinary members all or any of the Chief 20 Commissioner's functions under this Act. (2) Subsection (1) does not apply to -- (a) the power of delegation conferred by that subsection; or (b) any function that may be delegated to the Chief Commissioner under section 199F of the NTA as 25 provided for by section 6.10. 6.12. Other provisions relating to members Schedule 1 has effect in relation to members. page 98 Native Title (State Provisions) Bill 1999 Native Title Commission Part 6 Staff of the Commission Division 2 s. 6.13 Division 2 -- Staff of the Commission 6.13. Use of government staff etc. (1) Arrangements may be made under this section to enable the Commission and the Chief Commissioner to perform their 5 respective functions. (2) An arrangement may be made with the relevant employer for the use, either full-time or part-time, of the services of any officer or employee -- (a) in the Public Service; 10 (b) in a State agency or instrumentality; or (c) otherwise in the service of the Crown in right of the State. (3) An arrangement may be made with -- (a) a department of the Public Service; or 15 (b) a State agency or instrumentality, for the use of any facilities of the department, agency or instrumentality. (4) Arrangements under this section -- (a) may be made by the Chief Commissioner acting under 20 section 6.9; and (b) are to be made on such terms as are agreed to by the parties. 6.14. Consultants The Chief Commissioner may, acting under section 6.9, engage 25 a person under a contract for services to provide professional, technical or other assistance to the Commission or the Chief Commissioner. page 99 Native Title (State Provisions) Bill 1999 Part 6 Native Title Commission Division 3 Operation of Commission s. 6.15 Division 3 -- Operation of Commission Subdivision 1 -- How Commission to be constituted 6.15. General position (1) For the performance of its functions in respect of a particular 5 matter the Commission consists of the member or members specified by the Chief Commissioner under section 6.18(2) for that matter. (2) In exercising the power referred to in subsection (1) in respect of a matter to which subsection (1) or (2) of section 6.16 10 applies, the Chief Commissioner is to ensure that the constitution of the Commission satisfies that subsection. 6.16. Constitution of Commission for the performance of certain functions (1) For the performance of its functions under Part 3, other than its 15 mediation function under section 3.23(1), the Commission must include -- (a) at least one member who is qualified as mentioned in section 6.7(a); and (b) at least one member who holds an appointment under 20 the NTA as a member of the NNTT. (2) The Commission when performing any function in relation to a matter that involves the determination of an issue cannot be constituted by, or include, a member who has taken part in mediation in relation to that matter, unless each party consents 25 to the Commission being constituted by or including that member. page 100 Native Title (State Provisions) Bill 1999 Native Title Commission Part 6 Operation of Commission Division 3 s. 6.17 6.17. Concurrent operations The Commission constituted in accordance with this Division may perform the functions of the Commission in respect of a particular matter, even though the Commission differently 5 constituted in accordance with this Division is at the same time performing the functions of the Commission in respect of some other matter. Subdivision 2 -- Arrangement of business 6.18. Arrangement of business of the Commission 10 (1) The Chief Commissioner is responsible for -- (a) arranging the business of the Commission; (b) directing where the Commission is to sit; (c) determining the procedure of the Commission generally; and 15 (d) determining the procedure of the Commission at a particular place. (2) In performing the function in subsection (1)(a) the Chief Commissioner is to specify for the purpose of any particular matter or any particular class of matters -- 20 (a) the member or members who are to perform the functions of the Commission; and (b) if 2 or more members are specified, the member who is to be the chairperson. 6.19. Unavailability of member 25 (1) This section applies if -- (a) a member specified under section 6.18(2) for proceedings ceases to be a member and section 6.20 does not apply; or page 101 Native Title (State Provisions) Bill 1999 Part 6 Native Title Commission Division 3 Operation of Commission s. 6.20 (b) a member is for any reason not available for proceedings for which the member has been specified under section 6.18(2). (2) The Chief Commissioner must specify another member for the 5 proceedings or, if the parties agree, the Chief Commissioner may direct that the Commission be constituted by the remaining specified member or members (if any). (3) In exercising a power in subsection (2) the Chief Commissioner must ensure, if subsection (1) or (2) of section 6.16 applies, that 10 the constitution of the Commission continues to satisfy that subsection. 6.20. Completion of part-heard proceedings Despite a person ceasing to be a member because of the expiry of his or her term of office, the person may, with the approval of 15 the Chief Commissioner, continue as a member for the purpose of completing part-heard proceedings. Subdivision 3 -- Hearings 6.21. Commission to hold hearings The Commission is to hold such hearings as are necessary or 20 expedient for the performance of its functions. 6.22. Commission may determine whether matters are to be grouped together The Commission may, of its own motion or on the application of any of the parties concerned, direct that specified matters are 25 to be dealt with -- (a) in the same proceedings or in separate proceedings; or (b) at the same hearing or hearings or at separate hearings. page 102 Native Title (State Provisions) Bill 1999 Native Title Commission Part 6 Operation of Commission Division 3 s. 6.23 6.23. Opportunity to make submissions Subject to sections 6.27(3) and 6.29, the Commission must ensure that each party is given a reasonable opportunity to present the party's case and, in particular -- 5 (a) to inspect any documents to which the Commission proposes to have regard in making a recommendation or determination; and (b) to make written or oral submissions in respect of those documents. 10 6.24. Questions to be decided by majority All questions for decision by the Commission are to be decided by a majority of the members hearing the matter, with the chairperson having a casting vote. 6.25. Representation before Commission 15 A party may appear in person or be represented by any person before the Commission. 6.26. Participation by telephone, etc. The Commission may allow a person to participate in a hearing by means of telephone, closed-circuit television or any other 20 means of communication. 6.27. Hearings normally to be public (1) Subject to this section, a hearing by the Commission must be held in public. (2) If a hearing is in public, and a person participates by a means 25 allowed under section 6.26, the Commission must take such steps as are reasonably necessary to maintain the public nature of the hearing. page 103 Native Title (State Provisions) Bill 1999 Part 6 Native Title Commission Division 3 Operation of Commission s. 6.28 (3) The Commission may, of its own motion or on the application of a party, if it is satisfied that it is appropriate to do so, direct that a hearing, or part of a hearing, be held in private and give directions as to the persons who may be present. 5 (4) In determining whether a hearing or part of a hearing is to be in private, the Commission must have due regard to the cultural and customary concerns of Aboriginal peoples. Subdivision 4 -- Evidence and information 6.28. Evidence and findings of other bodies 10 In any proceedings, the Commission may, at its discretion -- (a) receive in evidence the transcript of evidence in any other proceedings before the Commission, any court or any other person or body; (b) receive in evidence any report, findings, decision, 15 determination or judgment of a person or body referred to in paragraph (a); or (c) adopt any report, findings, decision, determination or judgment of a person or body referred to in paragraph (a), 20 that it considers may be relevant to the proceedings. 6.29. Commission may prohibit disclosure of evidence The Commission may direct that -- (a) any evidence given before it; or (b) the contents of any document produced to it, 25 must not be disclosed, or must not be disclosed except in the way, and to the persons, specified in the direction. page 104 Native Title (State Provisions) Bill 1999 Native Title Commission Part 6 Operation of Commission Division 3 s. 6.30 6.30. Power of Commission to summon The Commission may, by summons signed on behalf of the Commission by the Chief Commissioner, require any person -- (a) to appear before the Commission, or before a person 5 authorized under section 6.33; or (b) to produce any documents specified in the summons to the Commission or to a person authorized under section 6.33, or to do both of those things. 10 6.31. Power of Commission to take evidence (1) The Commission may take evidence on oath or affirmation, and for that purpose a member of the Commission may administer an oath or affirmation. (2) A party may call witnesses. 15 (3) A person appearing before the Commission as a witness may be examined. (4) A person appearing before the Commission as a witness may be cross-examined or re-examined only with the leave of the Commission. 20 (5) If a person participates in a hearing by a means allowed under section 6.26, the Commission may make any arrangements that it thinks proper in the circumstances for administering an oath or affirmation to the person. 6.32. Power of the Commission to require answers 25 The Commission may require any person appearing before it (whether or not he or she has been summoned to appear) to answer any relevant question put to him or her by a member of the Commission or by any other person appearing before the Commission. page 105 Native Title (State Provisions) Bill 1999 Part 6 Native Title Commission Division 3 Operation of Commission s. 6.33 6.33. Commission may authorize another person to take evidence (1) The Commission may authorize a person to take evidence in relation to a matter on behalf of the Commission. (2) The authorization must be in writing and may specify 5 limitations on the powers of the person. (3) A person authorized under this section has, for the purposes of taking the evidence, and subject to any limitations referred to in subsection (2), all the powers of the Commission under section 6.31. 10 6.34. Interpreters The Commission may allow evidence to be given, or submissions to be made, with the assistance of an interpreter. 6.35. Retention and copying of documents The Commission may keep for a reasonable time, and may 15 make copies of, any document, or part of a document, produced to the Commission in the course of a hearing. Subdivision 5 -- Recommendations and determinations 6.36. Recommendations and determinations (1) A recommendation or determination of the Commission 20 must -- (a) be in writing; (b) state any findings of facts on which it is based; (c) refer to the evidence or other material on which such findings are based; and 25 (d) give reasons for the recommendation or determination. page 106 Native Title (State Provisions) Bill 1999 Native Title Commission Part 6 Financial provisions Division 4 s. 6.37 (2) A copy of a recommendation or determination must be given to -- (a) each of the parties in the proceeding; and (b) the responsible Minister. 5 Division 4 -- Financial provisions 6.37. Funds for carrying out this Act The funds available for the purposes of this Act consist of -- (a) moneys from time to time appropriated by Parliament; and 10 (b) other moneys lawfully received by, made available to or payable to the Commission for the purposes of this Act. 6.38. Native Title Commission Account (1) The funds referred to in section 6.37 are to be credited to an account called the "Native Title Commission Account" -- 15 (a) at the Treasury; or (b) with the approval of the Treasurer, at a bank, and if paragraph (a) applies the Account is to form part of the Trust Fund constituted under section 9 of the Financial Administration and Audit Act 1985. 20 (2) The Account is to be charged with -- (a) the remuneration and allowances payable under this Act; and (b) all other expenditure lawfully incurred in carrying out this Act. page 107 Native Title (State Provisions) Bill 1999 Part 6 Native Title Commission Division 5 General s. 6.39 6.39. Application of Financial Administration and Audit Act 1985 The provisions of the Financial Administration and Audit Act 1985 regulating the financial administration, audit and reporting of statutory authorities apply to and in respect of the 5 Commission and things done in the performance of functions under this Act. Division 5 -- General 6.40. Communication of information in certain cases (1) Where -- 10 (a) the Commission is required by or under this Act to cause a document to be served on or given to any person; and (b) it appears to the Commission that the person is blind or illiterate or is not literate in the English language, the Commission is, so far as it is reasonably practicable to do 15 so, to cause the information contained in the document to be communicated to the person in a manner that the person understands. (2) Failure to comply with subsection (1) does not affect any thing done under any other provision of this Act. 20 6.41. Reference of question of law to the Supreme Court (1) The Commission may, of its own motion or at the request of a party, refer to the Supreme Court for a decision any question of law arising in proceedings under Part 2, 3, 4 or 5. (2) The Supreme Court has jurisdiction to hear and determine a 25 question of law referred to it under this section. page 108 Native Title (State Provisions) Bill 1999 Native Title Commission Part 6 General Division 5 s. 6.42 (3) If a question of law arising in proceedings is referred to the Supreme Court under this section, the Commission must not, in those proceedings -- (a) make a recommendation or determination to which the 5 question is relevant while the reference is pending; or (b) proceed in a manner, or make a recommendation or determination, inconsistent with the decision of the Court on the question. 6.42. Offences 10 (1) A person who is served with a summons under section 6.30 must not fail without reasonable excuse to comply with the summons. Penalty: $2 500. (2) A person must not fail without reasonable excuse to make an oath or affirmation, or to answer a question, when required to do 15 so by the Commission. Penalty: $2 500. (3) A person must not give to -- (a) the Commission; or (b) a person authorized under section 6.33, 20 evidence that the person knows to be false or misleading in a material particular. Penalty: $5 000. (4) A person must not misbehave before the Commission, wilfully insult the Commission or a member, or interrupt the 25 proceedings of the Commission. Penalty: $5 000. page 109 Native Title (State Provisions) Bill 1999 Part 6 Native Title Commission Division 5 General s. 6.43 (5) A person must not disclose any material in contravention of a direction given under section 6.27(3) or 6.29. Penalty: $5 000. 6.43. Disclosure of interests 5 (1) A member who has a conflict of interest in relation to any proceedings must disclose the matters giving rise to that conflict -- (a) in the case of the Chief Commissioner, to the Minister and to each party; or 10 (b) in any other case, to the Chief Commissioner and to each party. (2) The member must not take part in, or exercise any powers in relation to, the proceedings unless -- (a) in the case of the Chief Commissioner, the Minister and 15 each party consents; or (b) in any other case, the Chief Commissioner and each party consents. (3) For the purposes of this section, a member has a conflict of interest in relation to proceedings if the member has any 20 interest, pecuniary or otherwise, that could conflict with the proper performance of the member's functions in relation to those proceedings. 6.44. Protection of members and persons appearing before the Commission 25 (1) A member has, in the performance of his or her functions, the same protection and immunity as a Judge of the Supreme Court. (2) A person appearing before the Commission on behalf of a party has the same protection and immunity as a barrister has in appearing on behalf of a party before the Supreme Court. page 110 Native Title (State Provisions) Bill 1999 Native Title Commission Part 6 General Division 5 s. 6.45 (3) Subject to this Act, a person appearing before the Commission to give evidence (whether or not in response to a summons) has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities as a witness in 5 proceedings in the Supreme Court. 6.45. Confidentiality (1) A person who is, or has been, a member or officer of the Commission is not competent, and cannot be required, to give evidence to a court relating to a matter if -- 10 (a) the giving of the evidence would be contrary to a direction under section 6.29; or (b) an application has been made to the Commission for a direction under that section concerning the matter to which the evidence relates, and the Commission has not 15 yet determined that application. (2) A person who is, or has been, a member or an officer of the Commission cannot be required to produce in court a document given to the Commission in connection with a proceeding if -- (a) the production of the document would be contrary to a 20 direction under section 6.29; or (b) an application has been made to the Commission for a direction under that section concerning the matter to which the document relates, and the Commission has not yet determined that application. 25 (3) A person who is, or has been, a member or an officer of the Commission cannot be required to give evidence to a court in relation to any proceedings before the Commission. page 111 Native Title (State Provisions) Bill 1999 Part 6 Native Title Commission Division 5 General s. 6.45 (4) In this section -- "court" includes any tribunal, authority or person having the power to require the answering of questions or the production of documents; 5 "produce" includes permit access to. page 112 Native Title (State Provisions) Bill 1999 Miscellaneous Part 7 s. 7.1 Part 7 -- Miscellaneous 7.1. Regulations (1) The Governor may make regulations prescribing all matters that are required or permitted to be prescribed or are necessary or 5 convenient to be prescribed for the purposes of this Act. (2) Without limiting subsection (1), the regulations may prescribe fees that are to be paid in connection with applications to, and proceedings in, the Commission. 7.2. Review of Act 10 (1) The Minister is to carry out and complete a review of the operation and effectiveness of this Act within 12 months after the 5th anniversary of the commencement of any provision of Part 6. (2) In carrying out the review the Minister is to have particular 15 regard to whether the public policy objectives of this Act remain valid and whether its provisions remain appropriate for achieving those objectives. (3) The Minister is to prepare a report based on the review and cause the report to be laid before each House of Parliament as 20 soon as is practicable after it is completed. 7.3. Consequential amendments Schedule 2 has effect. 7.4. Transitional provisions (1) Despite anything in Part 2 or Part 3, that Part does not apply to 25 an act that would, apart from this subsection, be a Part 2 act or a Part 3 act if, before the commencement of that Part, all notices page 113 Native Title (State Provisions) Bill 1999 Part 7 Miscellaneous s. 7.4 provided for by section 29 of the NTA have been given in relation to the act. (2) Division 1 of Schedule 3 has effect to enable regulations of a transitional nature to be made as to certain matters in progress at 5 the commencement of Part 2 and Part 3. (3) Division 2 of Schedule 3 has effect to enable regulations of a transitional nature to be made as to matters in progress under section 24MD(6B) of the NTA at the commencement of Part 4. page 114 Native Title (State Provisions) Bill 1999 Provisions relating to members of the Commission Schedule 1 Schedule 1 -- Provisions relating to members of the Commission [s. 6.12] 1. Term of office 5 (1) A member holds office for the term specified in the instrument of appointment but may from time to time be reappointed. (2) Subject to subclause (3), a term of appointment must not exceed 5 years. (3) An appointment may be made for a term of more than 5 years and not 10 more than 7 years and 6 months if -- (a) the appointment is made within 12 months after the commencement of this clause; and (b) on the making of the appointment, members appointed under this subclause do not constitute more than half of the 15 membership. 2. Remuneration, allowances and conditions of service (1) A member is to -- (a) receive such remuneration and allowances; and (b) have such entitlements to leave and other conditions of 20 service, as are determined by the Governor on the advice of the Minister for Public Sector Management. (2) Subclause (1) does not apply to the member referred to in section 6.6. 3. Oath or affirmation of office 25 Before he or she takes up office a member is to take an oath or make an affirmation before a Judge of the Supreme Court that he or she will faithfully and impartially perform the functions of his or her office. page 115 Native Title (State Provisions) Bill 1999 Schedule 1 Provisions relating to members of the Commission 4. Leave of absence The Minister may grant a full-time member leave of absence, other than leave of absence determined under clause 2, on such terms and conditions as the Minister determines. 5 5. Resignation A member may resign from office by giving a signed notice of resignation to the Governor. 6. Termination of appointment of NNTT member (1) The appointment of a person who is appointed as a member for the 10 purposes of section 6.6 terminates if the person ceases to be a member of the NNTT. (2) The application of subclause (1) to a person does not affect the application to him or her of clause 7, 8 or 9. 7. Termination of appointment of member for bankruptcy etc. 15 The Governor must terminate the appointment of a member if the member -- (a) becomes bankrupt; (b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; 20 (c) compounds with his or her creditors; or (d) makes an assignment of his or her remuneration for the benefit of his or her creditors. 8. Suspension by Governor and termination (1) The Governor may suspend a member from office on the ground of 25 misbehaviour or of physical or mental incapacity. (2) If the Governor suspends a member under subclause (1), the Minister must cause a statement of the grounds for the suspension to be laid before each House of Parliament within 7 sitting days of that House after the suspension. page 116 Native Title (State Provisions) Bill 1999 Provisions relating to members of the Commission Schedule 1 (3) If each House of Parliament, within 15 sitting days after the statement was laid before it, declares by resolution that the member's appointment should be terminated, the Governor must terminate the member's appointment. 5 (4) If, at the end of 15 sitting days after the statement was laid before a House of Parliament, the House has not passed such a resolution, the suspension terminates. (5) The suspension of a member under this clause does not affect any entitlement of the member to be paid remuneration and allowances. 10 9. Termination on address of both Houses of Parliament The Governor may terminate the appointment of a member if an address praying for the termination of the member's appointment on the ground of proved misbehaviour or of physical or mental incapacity is presented to the Governor by each House of Parliament 15 in the same session of Parliament. page 117 Native Title (State Provisions) Bill 1999 Schedule 2 Consequential amendments Schedule 2 -- Consequential amendments [s. 7.3] Division 1 -- Acts Amendment (Land Administration, Mining and Petroleum) Act 1998 5 1. The Act amended The amendments in this Division are to the Acts Amendment (Land Administration, Mining and Petroleum) Act 1998*. [* Act No. 61 of 1998.] 2. Section 2 amended 10 (1) Section 2(1) is amended by deleting "Subject to subsections (2) and (3), this" and inserting instead -- " This ". (2) Section 2(2) and (3) are repealed. 3. Sections 4 and 7 repealed 15 Sections 4 and 7 are repealed. Division 2 -- Constitution Acts Amendment Act 1899 4. Schedule V amended Schedule V Part 1 Division 1 to the Constitution Acts Amendment Act 1899* is amended by inserting after the item relating to the 20 Western Australian Gas Disputes Arbitrator -- " Member of the Native Title Commission established by the Native Title (State Provisions) Act 1999. ". 25 [* Reprinted as at 15 April 1999. For subsequent amendments see Acts Nos. 53 of 1998, and 5, 8, 26 and 34 of 1999.] page 118 Native Title (State Provisions) Bill 1999 Consequential amendments Schedule 2 Division 3 -- Financial Administration and Audit Act 1985 5. Schedule 1 amended Schedule 1 to the Financial Administration and Audit Act 1985* is amended by inserting in the appropriate alphabetical position the 5 following -- " Native Title Commission ". [* Reprinted as at 9 July 1999. For subsequent amendments see Acts Nos. 5, 8 and 26 of 1999.] Division 4 -- Land Administration Act 1997 10 6. The Act amended The amendments in this Division are to the Land Administration Act 1997*. [* Act No. 30 of 1997. For subsequent amendments see 1998 Index to Legislation of 15 Western Australia, Table 1, p. 136, and Act No. 26 of 1999.] 7. Section 6A inserted After section 6 the following section is inserted in Part 1 -- " 6A. Renewal etc. of certain tenures subject to Native 20 Title (State Provisions) Act 1999 (1) Where the exercise of a power under this Act to renew, re-grant or extend a non-exclusive tenure of land is a Part 4 act within the meaning of the Native Title (State Provisions) Act 1999, the exercise of the power is 25 subject to section 4.3 of that Act. (2) In subsection (1) -- "non-exclusive tenure of land" means an interest under -- (a) a lease; page 119 Native Title (State Provisions) Bill 1999 Schedule 2 Consequential amendments (b) a licence; or (c) other authority, that permits the use of the land but does not confer a right of exclusive possession. 5 ". 8. Section 151 amended Section 151(1) is amended as follows: (a) by inserting in the appropriate alphabetical positions the following definitions -- 10 " "approved determination of native title" means an approved determination of native title under the NTA where -- (a) the effect of the determination is that the 15 person concerned -- (i) holds native title; or (ii) immediately before the taking, held native title, in relation to the land affected by the taking; 20 (b) it is apparent from the terms of, or reasons for, the determination that the person concerned held native title in relation to the land affected by the taking immediately before the taking; or 25 (c) it is not apparent from the terms of, or reasons for, the determination that native title did not exist in relation to the land affected by the taking immediately before the taking; page 120 Native Title (State Provisions) Bill 1999 Consequential amendments Schedule 2 "registered native title body corporate" and "registered native title claimant" have the same meaning as they have in the NTA; "; 5 (b) in the definition of "proprietor" in paragraph (b) by inserting after "registered" -- " , or a registered native title body corporate or registered native title claimant in relation to the 10 land ". 9. Section 152A inserted After section 152 the following section is inserted -- " 15 152A. This Part subject to Native Title (State Provisions) Act 1999 Where the taking of land or an interest in land under this Part is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of the Native Title (State 20 Provisions) Act 1999, the operation of this Part is subject to section 2.6, 3.5 or 4.3, as the case may be, of that Act. ". 10. Section 153 amended 25 Section 153(3) is amended in paragraph (a) of the definition of "in accordance with the NTA" as follows: (a) by deleting "5" in the 3 places where it occurs and inserting instead -- " 4 "; page 121 Native Title (State Provisions) Bill 1999 Schedule 2 Consequential amendments (b) by deleting "1998" and inserting instead -- " 1999 ". 11. Section 154 amended (1) Section 154(1)(b) is deleted and the following paragraph is inserted 5 instead -- " (b) the taking of those interests would be a compulsory acquisition that is referred to in section 26(1)(c)(iii) of the NTA. 10 ". (2) Section 154(3) is amended in the definition of "in accordance with the NTA" as follows: (a) in paragraph (a) -- (i) by deleting "Part 3" in the 3 places where it occurs 15 and inserting instead -- " Part 2 "; (ii) by deleting "1998" and inserting instead -- " 1999 "; (b) in paragraph (b) -- 20 (i) by deleting "4" in the 3 places where it occurs and inserting instead -- " 3 "; (ii) by deleting "1998" and inserting instead -- " 1999 ". 25 12. Section 156 amended After section 156(2) the following subsection is inserted -- " (2a) The entitlement of native title holders to compensation under Part 10 is an entitlement to compensation on just page 122 Native Title (State Provisions) Bill 1999 Consequential amendments Schedule 2 terms for any loss, diminution or impairment of, or other effect of the taking on, their native title rights and interests. ". 5 13. Section 157 amended Section 157 is amended by inserting after "native title holders" -- " or a registered native title body corporate ". 14. Section 158 repealed Section 158 is repealed. 10 15. Section 162 amended Section 162(2) is amended as follows: (a) after paragraph (b) by deleting "or"; (b) in paragraph (c) by deleting the comma and inserting instead -- 15 " ; or "; (c) after paragraph (c) by inserting the following paragraph -- " (d) a native title right or interest in land under the surface is injuriously affected, 20 ". 16. Section 163 amended Section 163 is amended by deleting "or of the principal proprietor of" and inserting instead -- " 25 , the principal proprietor of the land, or any registered native title body corporate or registered native title claimant in relation to ". page 123 Native Title (State Provisions) Bill 1999 Schedule 2 Consequential amendments 17. Section 170 amended Section 170(5)(b) is amended by inserting after "occupier of the land" -- " 5 , any registered native title body corporate or registered native title claimant in relation to the land, ". 18. Section 175 amended Section 175(1)(a) is amended after subparagraph (ii) by deleting "or" 10 and inserting instead -- " (iia) any registered native title body corporate or registered native title claimant in relation to land affected by 15 the notice; (iib) the holder of any native title rights and interests in land affected by the notice; or ". 20 19. Section 176 amended Section 176(1) is amended by deleting ", a lease of Crown land or" and inserting instead -- " or a lease of Crown land or the holders of ". 20. Section 182 amended 25 Section 182(2) is amended by deleting "and to" and inserting instead -- " any registered native title body corporate or registered native title claimant, and 30 ". page 124 Native Title (State Provisions) Bill 1999 Consequential amendments Schedule 2 21. Section 183 amended Section 183(2)(a) is amended by deleting "and to" and inserting instead -- " 5 any registered native title body corporate or registered native title claimant, and ". 22. Section 184 amended Section 184(3) is amended by deleting "and to" and inserting 10 instead -- " any registered native title body corporate or registered native title claimant, and ". 15 23. Section 185 amended Section 185(3) is amended by deleting "and to" and inserting instead -- " any registered native title body corporate or registered 20 native title claimant in relation to the land, and ". 24. Section 186 amended Section 186(3)(a) is amended by deleting "and to" and inserting instead -- 25 " any registered native title body corporate or registered native title claimant, and ". page 125 Native Title (State Provisions) Bill 1999 Schedule 2 Consequential amendments 25. Section 207 amended After section 207(2) the following subsection is inserted -- " (2a) The time limit (whether it has expired or not) under 5 this section must, on the application of a person who wishes to make a claim in respect of the taking of native title rights and interests, be extended if an approved determination of native title is made in relation to the land to which the claim relates. 10 ". 26. Section 212 amended After section 212(2) the following subsection is inserted -- " (3) If the acquiring authority does transfer property, 15 provide goods and services or provide another form of compensation in accordance with a request -- (a) the transfer of property, provision of goods and services or provision of another form of compensation constitutes full or part 20 compensation under this Part, as the case may be; and (b) the entitlement to compensation is taken to have been determined in accordance with the provisions of this Part. 25 ". 27. Section 214 amended (1) Section 214(2) is amended by deleting "If" and inserting instead -- " Subject to subsection (3), if ". page 126 Native Title (State Provisions) Bill 1999 Consequential amendments Schedule 2 (2) After section 214(2) the following subsection is inserted -- " (3) Subsection (2) does not operate to bar a claim in respect of native title rights and interests if -- 5 (a) during or after the 60 day period, or any extended time, referred to in that subsection an approved determination of native title is made in relation to the land to which the claim relates; and 10 (b) the particulars required under this section are furnished within 60 days after that determination is made. ". 28. Section 216 amended 15 (1) Section 216(1) is amended by inserting after "A claimant may," -- " subject to subsection (4), ". (2) After section 216(3) the following subsection is inserted -- " (4) An application cannot be made under subsection (1) if 20 the notice disputing the title of the claimant relates to native title rights and interests. ". 29. Section 217 amended Section 217(2) is amended as follows: 25 (a) by deleting the passage beginning "If a judgment" and ending "under dispute," and inserting instead -- page 127 Native Title (State Provisions) Bill 1999 Schedule 2 Consequential amendments " If -- (a) a judgment of the Supreme Court under section 216 confirms, in whole, or in part, a 5 claimant's title to an interest in land under dispute; or (b) in the case of a claimant to whom section 216(4) applies, an approved determination of native title is made in relation 10 to the claimant, "; (b) by inserting after "confirmed" -- " or determined ". 30. Section 221 amended 15 Section 221(2)(b) is deleted and the following paragraph is inserted instead -- " (b) if the title of the claimant was disputed then -- (i) if the Supreme Court confirmed the 20 claimant's title, in whole or in part, under section 216 -- the day of the judgment; or (ii) if an approved determination of native title was made in relation to the 25 claimant -- the day of the determination. ". 31. Section 223 amended Section 223(7) is amended by deleting "the judgment of the Supreme 30 Court on that issue under section 216" and inserting instead -- page 128 Native Title (State Provisions) Bill 1999 Consequential amendments Schedule 2 " -- (a) the judgment of the Supreme Court on that issue under section 216; or 5 (b) in the case of a claimant to whom section 216(4) applies, the outcome of any native title determination application made by the claimant under section 61 of the NTA. ". 10 32. Section 224 amended Section 224(7) is amended by deleting "the judgment of the Court under section 216" and inserting instead -- " -- 15 (a) the judgment of the Supreme Court under section 216; or (b) in the case of a claimant to whom section 216(4) applies, the outcome of any native title determination application made by 20 the claimant under section 61 of the NTA. ". 33. Section 241 amended (1) Section 241(1) is amended by deleting "taken under this Part" and inserting instead -- 25 " , other than native title rights and interests, taken under Part 9 ". page 129 Native Title (State Provisions) Bill 1999 Schedule 2 Consequential amendments (2) After section 241(1) the following subsection is inserted -- " (1a) In determining the amount of compensation (if any) to be offered, paid, or awarded for native title rights and 5 interests taken under Part 9, regard may be had to the matters referred to in this section. ". Division 5 -- Mining Act 1978 34. The Act amended 10 The amendments in this Division are to the Mining Act 1978*. [* Reprinted as at 26 July 1999.] 35. Section 19 amended (1) Section 19(6)(a) is amended by inserting immediately before "grant" the following -- 15 " subject to subsection (6a), ". (2) After section 19(6) the following subsection is inserted -- " (6a) If the grant of a mining tenement under subsection (6) is a Part 2 act, a Part 3 act or a Part 4 act within the 20 meaning of the Native Title (State Provisions) Act 1999, the operation of that subsection is subject to section 2.6, 3.5 or 4.3 of that Act as the case may be. ". page 130 Native Title (State Provisions) Bill 1999 Consequential amendments Schedule 2 36. Section 39A inserted Immediately before section 40 the following section is inserted -- " 39A. This Division subject to Native Title (State 5 Provisions) Act 1999 (1) The operation of this Division is subject to section 2.6, 3.5 or 4.3, as the case may be, of the Native Title (State Provisions) Act 1999 where -- (a) the grant of a prospecting licence; or 10 (b) the grant of any mining tenement under section 56A, is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of that Act. (2) The provisions of this Division relating to objections to 15 the granting of an application do not apply to an objection of the kind referred to in section 2.16, 3.15 or 4.11 of the Native Title (State Provisions) Act 1999, and objections of that kind can only be made under that Act. 20 ". 37. Section 49 amended After section 49(1) the following subsection is inserted -- " (1a) The operation of subsection (1) is subject to 25 section 2.6, 3.5 or 4.3, as the case may be, of the Native Title (State Provisions) Act 1999. ". page 131 Native Title (State Provisions) Bill 1999 Schedule 2 Consequential amendments 38. Section 56 amended After section 56(1) the following subsection is inserted -- " (1a) An appeal does not lie under subsection (1) where the 5 warden does not grant an application, or attaches any condition to a grant, because of one of the following instruments made under the Native Title (State Provisions) Act 1999 -- (a) an agreement of the kind described in 10 section 2.26, 3.22(1) or 4.21 that is given to the Commission under section 2.26, 3.25 or 4.21; (b) a recommendation under section 2.32 or 4.27; (c) a determination under section 2.38, 3.29, 3.44 or 4.33; 15 (d) a declaration under section 3.51. ". 39. Section 56AA inserted Immediately before section 56B the following section is inserted -- " 20 56AA. This Division subject to Native Title (State Provisions) Act 1999 (1) The operation of this Division is subject to section 2.6, 3.5 or 4.3, as the case may be, of the Native Title (State Provisions) Act 1999 where -- 25 (a) the grant or extension of an exploration licence; or page 132 Native Title (State Provisions) Bill 1999 Consequential amendments Schedule 2 (b) the grant of any mining tenement under section 70, is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of that Act. 5 (2) The provisions of this Division relating to objections to the granting of an application do not apply to an objection of the kind referred to in section 2.16, 3.15 or 4.11 of the Native Title (State Provisions) Act 1999, and objections of that kind can only be made under that 10 Act. ". 40. Section 67 amended After section 67(1) the following subsection is inserted -- " 15 (1a) The operation of subsection (1) is subject to section 2.6, 3.5 or 4.3, as the case may be, of the Native Title (State Provisions) Act 1999. ". 41. Section 70AA inserted 20 After section 70A the following section is inserted -- " 70AA. This Division subject to Native Title (State Provisions) Act 1999 (1) The operation of this Division is subject to section 2.6, 25 3.5 or 4.3, as the case may be, of the Native Title (State Provisions) Act 1999 where the grant or renewal of a retention licence is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of that Act. page 133 Native Title (State Provisions) Bill 1999 Schedule 2 Consequential amendments (2) The provisions of this Division relating to objections to the granting of an application do not apply to an objection of the kind referred to in section 2.16, 3.15 or 4.11 of the Native Title (State Provisions) Act 1999, and 5 objections of that kind can only be made under that Act. ". 42. Section 70L amended After section 70L(1) the following subsection is inserted -- " 10 (1a) The operation of subsection (1) is subject to section 2.6, 3.5 or 4.3, as the case may be, of the Native Title (State Provisions) Act 1999. ". 43. Section 70O inserted 15 Immediately before section 71 the following section is inserted -- " 70O. This Division subject to Native Title (State Provisions) Act 1999 (1) Where -- 20 (a) the grant or renewal of a mining lease; or (b) the grant of any mining tenement under section 85B, is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of the Native Title (State Provisions) 25 Act 1999, the operation of the provisions of this Division relating to that grant or renewal is subject to section 2.6, 3.5 or 4.3, as the case may be, of that Act. (2) The provisions of this Division relating to objections to the granting of an application do not apply to an page 134 Native Title (State Provisions) Bill 1999 Consequential amendments Schedule 2 objection of the kind referred to in section 2.16, 3.15 or 4.11 of the Native Title (State Provisions) Act 1999, and objections of that kind can only be made under that Act. 5 ". 44. Section 75 amended After section 75(7) the following subsection is inserted -- " (8) The operation of subsection (7) is subject to 10 section 2.6, 3.5 or 4.3, as the case may be, of the Native Title (State Provisions) Act 1999. ". 45. Section 85C inserted Immediately before section 86 the following section is inserted -- 15 " 85C. This Division subject to Native Title (State Provisions) Act 1999 (1) The operation of this Division in relation to the grant of general purpose leases is subject to section 2.6, 3.5 or 20 4.3, as the case may be, of the Native Title (State Provisions) Act 1999. (2) Where the renewal of a general purpose lease is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of the Native Title (State Provisions) Act 1999, the 25 operation of this Division in relation to that renewal is subject to section 2.6, 3.5 or 4.3, as the case may be, of that Act. (3) The provisions relating to objections to the granting of an application that apply for the purposes of this page 135 Native Title (State Provisions) Bill 1999 Schedule 2 Consequential amendments Division do not apply to an objection of the kind referred to in section 2.16, 3.15 or 4.11 of the Native Title (State Provisions) Act 1999, and objections of that kind can only be made under that Act. 5 ". 46. Section 90A inserted Immediately before section 91 the following section is inserted -- " 90A. This Division subject to Native Title (State 10 Provisions) Act 1999 (1) The operation of this Division is subject to section 2.6, 3.5 or 4.3, as the case may be, of the Native Title (State Provisions) Act 1999 where the grant of a miscellaneous licence is a Part 2 act, a Part 3 act or a 15 Part 4 act within the meaning of that Act. (2) The provisions relating to objections to the granting of an application that apply for the purposes of this Division do not apply to an objection of the kind referred to in section 2.16, 3.15 or 4.11 of the Native 20 Title (State Provisions) Act 1999, and objections of that kind can only be made under that Act. ". Division 6 -- Parliamentary Commissioner Act 1971 47. Schedule 1 amended 25 Schedule 1 to the Parliamentary Commissioner Act 1971* is amended by inserting in the appropriate alphabetical position the following -- page 136 Native Title (State Provisions) Bill 1999 Consequential amendments Schedule 2 " The Native Title Commission established by the Native Title (State Provisions) Act 1999. ". 5 [* Reprinted as at 20 January 1997. For subsequent amendments see 1998 Index to Legislation of Western Australia, Table 1, p. 182, and Act No. 65 of 1998.] Division 7 -- Petroleum Act 1967 48. The Act amended 10 The amendments in this Division are to the Petroleum Act 1967*. [* Reprinted as at 17 December 1992. For subsequent amendments see 1998 Index to Legislation of Western Australia, Table 1, p. 188 and Act No. 17 of 1999.] 49. Section 5 amended 15 After section 5(8) the following subsection is inserted -- " (9) If the exercise of the power conferred by subsection (8) to amend or vary any instrument is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of the Native 20 Title (State Provisions) Act 1999 that exercise is subject to section 2.6, 3.5 or 4.3, as the case may be, of that Act. ". 50. Section 11 amended 25 After section 11(1) the following subsection is inserted -- " (1a) If any act to be done under subsection (1) is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of the Native Title (State Provisions) Act 1999, the page 137 Native Title (State Provisions) Bill 1999 Schedule 2 Consequential amendments operation of that subsection is subject to section 2.6, 3.5 or 4.3, as the case may be, of that Act. ". 51. Section 28B inserted 5 Immediately before section 29 the following section is inserted -- " 28B. This Division subject to Native Title (State Provisions) Act 1999 The operation of this Division is subject to section 2.6, 10 3.5 or 4.3, as the case may be, of the Native Title (State Provisions) Act 1999 where the grant, renewal or extension of an exploration permit or a drilling reservation is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of that Act. 15 ". 52. Section 48AA inserted Immediately before section 48A the following section is inserted -- " 48AA. This Division subject to Native Title (State 20 Provisions) Act 1999 The operation of this Division is subject to section 2.6, 3.5 or 4.3, as the case may be, of the Native Title (State Provisions) Act 1999 where the grant or renewal of a retention lease is a Part 2 act, a Part 3 act or a Part 4 act 25 within the meaning of that Act. ". page 138 Native Title (State Provisions) Bill 1999 Consequential amendments Schedule 2 53. Section 48L inserted Immediately before section 49 the following section is inserted -- " 48L. This Division subject to Native Title (State 5 Provisions) Act 1999 Where the grant or renewal of a production licence is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of the Native Title (State Provisions) Act 1999, the operation of the provisions of this 10 Division relating to that grant or renewal is subject to section 2.6, 3.5 or 4.3, as the case may be, of that Act. ". 54. Section 105 amended After section 105(3) the following subsection is inserted -- 15 " (3a) Where the grant of a special prospecting authority under subsection (3) is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of the Native Title (State Provisions) Act 1999, the operation of that subsection 20 is subject to section 2.6, 3.5 or 4.3, as the case may be, of that Act. ". 55. Section 106 amended After section 106(3) the following subsection is inserted -- 25 " (3a) Where the grant of an access authority under subsection (3) is a Part 2 act, a Part 3 act or a Part 4 act within the meaning of the Native Title (State Provisions) Act 1999, the operation of that subsection is subject to 30 section 2.6, 3.5 or 4.3, as the case may be, of that Act. ". page 139 Native Title (State Provisions) Bill 1999 Schedule 2 Consequential amendments 56. Section 116 amended After section 116(1) the following subsection is inserted -- " (1a) Where the giving of a consent under subsection (1) is a 5 Part 2 act, a Part 3 act or Part 4 act within the meaning of the Native Title (State Provisions) Act 1999, the operation of that subsection is subject to section 2.6, 3.5 or 4.3, as the case may be, of that Act. ". 10 Division 8 -- Petroleum Pipelines Act 1969 57. The Act amended The amendments in this Division are to the Petroleum Pipelines Act 1969*. [* Reprinted as at 19 February 1992. 15 For subsequent amendments see 1998 Index to Legislation of Western Australia, Table 1, p. 189 and Acts Nos. 65 of 1998, and 20 of 1999.] 58. Section 10A inserted After section 10 the following section is inserted -- " 20 10A. Licence not to affect native title (1) A licence is not to be taken to authorize the licensee or any other person to do any act that affects native title. (2) In subsection (1) -- "affects" and "native title" have the meanings given 25 to them respectively by sections 227 and 223 of the Native Title Act 1993 of the Commonwealth. ". page 140 Native Title (State Provisions) Bill 1999 Consequential amendments Schedule 2 59. Section 19 amended After section 19(1) the following subsection is inserted -- " (1a) Where the taking of land or an easement in land under 5 subsection (1) is a Part 2 act, a Part 3 act or Part 4 act within the meaning of the Native Title (State Provisions) Act 1999, the operation of that subsection is subject to section 2.6, 3.5 or 4.3, as the case may be, of that Act. 10 ". page 141 Native Title (State Provisions) Bill 1999 Schedule 3 Transitional provisions Schedule 3 -- Transitional provisions [s. 7.4] Division 1 -- Existing applications for mining tenements 1. Definition 5 In this Division -- "existing mining application" means an application -- (a) for a Part 2 act or a Part 3 act to be done that would -- (i) create or vary a right to mine; or (ii) renew, re-grant, remake or extend the term of an 10 instrument creating a right to mine; and (b) that -- (i) was made before the commencement of Part 2 or Part 3, as the case may be; but (ii) was not granted before that commencement. 15 2. Regulations may modify certain provisions The regulations may make provisions by which sections 2.14 and 3.13 are modified in their application to Part 2 acts and Part 3 acts to which existing mining applications relate to provide that all notices of those acts under sections 2.12 and 3.10 are to be given by the Government 20 party. 3. Programme for dealing with existing mining applications (1) The regulations may make provisions that establish a programme by which the giving of notices under sections 2.12 and 3.10 of Part 2 acts and Part 3 acts to which existing mining applications relate are to be 25 spread over a period of time. (2) The purpose of the programme is to enable the processes in Parts 2 and 3 to be applied to the acts concerned in an orderly and effective manner. page 142 Native Title (State Provisions) Bill 1999 Transitional provisions Schedule 3 (3) In particular, the regulations may provide, as part of the programme, for the giving of notices of acts relating to areas of the State specified in the regulations to be limited to a certain number of acts during a period so specified. 5 Division 2 -- Matters in progress under section 24MD(6B) of the NTA 4. Definition (1) In this Division -- "section 24MD(6B) matter" means, subject to this clause, an act, 10 matter or circumstance that has occurred or come into existence before the commencement of Part 4 for the purpose of -- (a) the State meeting its obligations; or (b) a person exercising rights or performing functions, under subsection (6B) of section 24MD of the NTA, or 15 otherwise for the purposes of that subsection. (2) The definition in subclause (1) includes notices given, time that has elapsed or commenced to run, objections made, requests for a hearing and, subject to subclause (3), proceedings commenced. (3) The definition does not include -- 20 (a) proceedings commenced if the independent person referred to in section 24MD(6B) has entered upon the proceedings to the extent of holding a hearing; or (b) determinations or recommendations made. 5. Regulations may make transitional provisions 25 (1) The regulations may make any provision of a transitional nature that is necessary or expedient to be made to ensure that, after the commencement of Part 4 -- (a) all section 24MD(6B) matters are dealt with under that Part; and page 143 Native Title (State Provisions) Bill 1999 Schedule 3 Transitional provisions (b) there is an effective transition from the provisions of section 24MD(6B) of the NTA to the provisions of that Part. (2) Without limiting subclause (1), the regulations may make provision for the continuing effect of section 24MD(6B) matters, whether with 5 or without modification, and for those matters to be treated as if they had occurred or come into existence for the purposes of Part 4. (3) Provision may be made as mentioned in subclause (2) despite the fact that a section 24MD(6B) matter does not fully comply with a requirement of Part 4. page 144 Native Title (State Provisions) Bill 1999 Defined Terms Defined terms in this Act [This is a list of terms defined in this Act and the provisions where they are defined. The list is not part of the law.] Defined term Provision(s) a Part 2 act ...........................................................................................................2.5(1) a Part 3 act ...........................................................................................................3.4(1) a Part 4 act ............................................................................................................... 4.2 agreement ..........................................................................................................3.48(2) alternative provision area.......................................................................................... 2.1 application ............................................................................................ 2.44, 3.56, 4.39 Chief Commissioner.............................................................................................1.5(4) close of business............................................................................ 2.6(3), 3.5(3), 4.3(3) closing day...........................................................................................................1.5(4) Commission .........................................................................................................1.5(4) Commonwealth Minister ......................................................................................1.5(3) consultation parties..............................................................................1.5(4), 2.22, 4.17 consultation period ................................................................................2.27(6), 4.22(5) court .......................................................................................................5.3(4), 6.45(4) determination .....................................................................................................3.48(2) existing mining application.................................................................................. Sch. 3 Government party.................................................................................................1.5(4) grant for the benefit of Aboriginal persons ................................................................ 2.1 in the interests of the State.....................................................................2.41(2), 4.36(2) last day for the lodgment of objections..................................................................2.6(3) member................................................................................................................1.5(4) native title holders.................................................................................................... 5.1 negotiation parties ...................................................................................1.5(4), 3.21(1) negotiation period ..............................................................................................3.39(7) objection period ...................................................................................................3.5(3) objector................................................................................................................1.5(4) ordinary member ..................................................................................................1.5(4) Part 2 act..............................................................................................................1.5(4) Part 3 act..............................................................................................................1.5(4) Part 4 act..............................................................................................................1.5(4) pending application ..............................................................................................2.6(3) produce ..............................................................................................................6.45(4) proponent.............................................................................................................1.5(4) recommendation...................................................................................................1.5(4) registered native title rights and interests...............................................................1.5(4) relevant land ........................................................................................................1.5(4) page 145 Native Title (State Provisions) Bill 1999 Defined Terms relevant provisions of the NTA...........................................................................3.48(2) responsible Minister .............................................................................................1.5(4) section 24MD(6B) matter .................................................................................... Sch. 3 specified...................................................................................2.39(5), 3.52(5), 4.34(5) the allowed period ....................................................................2.30(1), 3.42(1), 4.25(1) the Part 2 commencement day ..............................................................................1.2(3) the Part 3 commencement day ..............................................................................1.2(4) the trust amount ....................................................................................................... 5.9 written law ...........................................................................................................1.5(5) page 146 Native Title (State Provisions) Bill 1999 Defined Terms Defined terms in the NTA [This is a list of terms used in this Act and defined in the Native Title Act 1993 of the Commonwealth and the provisions where they are defined. The list is not part of the law.] Defined term Provision of NTA Aboriginal peoples .................................................................................................. 253 act........................................................................................................................... 226 affect....................................................................................................................... 227 approved determination of native title...................................................................... 253 arbitral body............................................................................................................ 253 attributable.............................................................................................................. 239 Commonwealth Minister ........................................................................................ 253 future act ................................................................................................................ 233 Government party ................................................................................................... 253 interest ................................................................................................................... 253 land ........................................................................................................................ 253 mine........................................................................................................................ 253 native title .............................................................................................................. 223 native title claim group ........................................................................................... 253 native title holder ................................................................................................... 224 Native Title Registrar ............................................................................................. 253 native title rights and interests ................................................................................ 223 National Native Title Register ................................................................................ 253 NNTT ..................................................................................................................... 253 ordinary title .......................................................................................................... 253 permissible lease etc. .............................................................................................24IC Register of Native Title Claims ............................................................................... 253 registered native title body corporate ...................................................................... 253 registered native title claimant ................................................................................ 253 representative body ................................................................................................. 253 State Minister ......................................................................................................... 253 valid ....................................................................................................................... 253 waters .................................................................................................................... 253
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