Department of Natural Resources and Mines
Chapter 5 Future Acts
Date: 8 October 2015
Queensland
Government
Chapter 5
Future Acts
1.
Introduction
This chapter explains the current native title law and policy governing the doing of future acts in
Queensland. It provides clear explanations, answers to commonly asked questions, easy-tofollow steps and comprehensive flowcharts.
If you have assessed that native title has been extinguished over the whole of
your proposed dealing area then this Chapter is not relevant to your proposed
dealing.
2.
What is a future act?
A future act is defined under the NTA as any act that– (a) (i) consists of the making, amendment or repeal of legislation and takes place on or after 1
July 1993;
or
(ii) is done on, or after, 1 January 1994;
AND
(b) is not a past act (refer to Module E);
AND
(c) validly affects native title in relation to the land or waters to any extent1.
This means the act needs to be done in accordance with the future act provisions of the NTA.
A future act affects native title by either –

extinguishing the native title rights and interests;
or

being wholly or partly inconsistent with the continued existence, enjoyment or exercise of
the native title rights and interests. 2
1
2
Section 233, NTA; Section 227, NTA; section 13A, Acts Interpretation Act 1954;
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – V3
Chapter 5: Future Acts
2
3.
What is the future act regime?
The NTA sets out a regime for dealing with future acts over land or waters where native title has
not been extinguished.
The future act regime consists of a number of different provisions within section 24 of the NTA
that deal with a range of subject matters from primary production to offshore places. This regime
prescribes that certain procedural rights are provided to native title parties.
4.
How do I work through this Chapter?
The NTA provides a “batting order” from section 24FA to section 24NA for the future act regime.
Each Module within this Chapter must be considered in its order so that the correct decision is
made. If you do not apply this batting order, you may provide the wrong procedural rights to the
native title parties as each step has different procedural rights and some steps have no
procedural rights.
The Batting Order
Invalid future acts – see Module O
s24NA Module M&N – Freehold test
(onshore places), acquisitions,
s24MD
mining, offshore places.
Fu
tu
re
ac
tr
eg
im
e
s24LA
s24GD
s24GB
s24FA
Module K – Facilities for services to the public
s24HA
order…
Apply the batting order by
starting at the first step
(s24FA) and asking
whether your proposed
s24JA
Module J – Reservations and leases
s24JAA Module JAA - Public housing and certain government
infrastructure on Indigenous land
s24IA
s24GE
s24KA
Module L – Low impact future acts
How to apply the batting
Modules IB & IC – Pre-existing right-based acts and renewals, etc
Module H – Water, living aquatic resources, airspace
Module GE – Third party rights on non-exclusive pastoral/agricultural leases
dealing falls within this
step. If not, move to the
second step. Move from
step to step until your
proposed dealing fits, then
STOP.
Module GD – off-farm activities directly connected to primary production
Module GB – Primary production on non-exclusive pastoral/agricultural leases
Module F – Section 24FA protection – non-claimant applications
Registered Indigenous land use agreements (see Module AC)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – V3
Chapter 5: Future Acts
If 2 steps could apply to
your proposed dealing,
choose the lower step.
3
5.
What does a determination that native title exists mean in relation to
doing future acts?
A determination that native title exists does NOT prevent the doing of future acts over the
determination area. Any future acts must still be done in accordance with the future act regime
of the NTA and the appropriate procedural rights must be afforded to the registered native title
body corporate.
IMPORTANT
One of the requirements of an approved determination of native title is that the native title
holders must establish a registered native title body corporate. If a registered native title body
corporate has not yet been established, then the procedural rights should be provided to the
determined native title holders, ie. the people who were the registered native title claimants.
However, there are three future act sections which cannot be used where there has been a
determination that native title exists over the proposed dealing area –

section 24FA of the NTA (Module F) cannot be used where there has been a determination
that native title exists over the proposed dealing area;

section 24GD of the NTA (Module GD) cannot be used where (a) a determination that native title exists has been made in relation to the land adjoining or
near a freehold estate, agricultural lease, or pastoral lease (the proposed dealing area),
that recognises exclusive possession in relation to those lands or waters;
AND
(b) the proposed activity will be inconsistent with the exercise of native title rights and
interests; and
NB. If exclusive possession has NOT been recognised or the activity is NOT inconsistent
with the exercise of native title rights and interests, then section 24GD can be used.

section 24LA of the NTA (Module L) cannot be used for acts that are future acts as a low
impact future act must take place before and must not continue after an approved
determination of native title.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – V3
Chapter 5: Future Acts
4
A determination that native title exists over the proposed dealing area may also affect the type of
procedural rights given to the Native Title Representative Body. For example, under section
24KA where there has been a determination of native title, the Native Title Representative Body
is not provided with any procedural rights. Before the determination, the Native Title
Representative Body was entitled to a notification or a notification and opportunity to comment.
Now you may begin … proceed to and consider Module F.
The Batting Order
Invalid future acts – see Module O
s24NA Module M&N – Freehold test
(onshore places), acquisitions,
s24MD
mining, offshore places.
Fu
tu
re
ac
tr
eg
im
e
s24LA
s24GD
s24GB
s24FA
s24JA
Module K – Facilities for services to the public
Module J – Reservations and leases
s24JAA Module JAA - Public housing and certain government
infrastructure on Indigenous land
s24IA
s24HA
s24GE
s24KA
Module L – Low impact future acts
Modules IB & IC – Pre-existing right-based acts and renewals, etc
Module H – Water, living aquatic resources, airspace
Module GE – Third party rights on non-exclusive pastoral/agricultural leases
Module GD – off-farm activities directly connected to primary production
Module GB – Primary production on non-exclusive pastoral/agricultural leases
Module F – Section 24FA protection – non-claimant applications
Registered Indigenous land use agreements (see Module AC)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – V3
Chapter 5: Future Acts
5
Department of Natural Resources and Mines
Module F
Protection for future acts arising from a non-claimant
application
Date: 8 October 2015
Queensland
Government
Module F
Section 24FA – Section 24FE
Protection for future acts arising from a non-claimant
application
DOES THE PROPOSED FUTURE ACT FIT WITHIN THIS MODULE? This Module helps you assess whether section 24FA protection applies to the
proposed dealing area.
Only consider this Module if the proposed dealing area is –
(a) covered by a non-claimant application; and
(b) NOT covered by a determination of native title,
otherwise proceed to Module GB.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module F V3
Chapter 5: Future Acts
2
TABLE OF CONTENTS
Part 1
What is section 24FA protection? .................................................................................... 4 A. Does this Module apply to my proposed future act?
Part 2
Some threshold questions................................................................................................ 5
B. When the State relies upon section 24FA protection?
Part 3
When the State relies upon section 24FA protection ........................................................ 9
C. What does it mean if section 24FA protection applies?
Part 4
Aboriginal and Torres Strait Islander Land Services has advised that section 24FA
protection applies to the proposed dealing area ............................................................ 10
D. Effect on native title, compensation and decision-making
Part 5
What is the effect on native title of an act done under section 24FA protection? ........... 11
Part 6
Compensation ................................................................................................................ 11
Part 7
Who makes the decision whether this module applies? ................................................ 11
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module F V3
Chapter 5: Future Acts
3
Part 1
What is section 24FA protection?
Section 24FA protection was included in the future act regime to allow people with existing
interests in land to ascertain whether native title exists in order to give them certainty when doing
acts in relation to that land. A major purpose of this future act provision is to ensure validity of
future acts done before a determination has been made, but only where certain conditions apply.1
Where section 24FA protection applies, subject to certain conditions, future acts can validly
proceed in relation to native title over an area covered by a non-claimant application.
Section 24FA protection is the result of –

a non-claimant application by a government party (subject to specific conditions); or

a non-claimant application by a non-government party (subject to specific conditions).
“non-claimant application”
A non-claimant application is an application filed, by a person who neither claims to hold native
title nor is acting on behalf of those who do, in the Federal Court seeking a determination by the
Federal Court as to whether native title exists in relation to an area.2 A person includes a
government party or a non-government party.
Government party
A government party includes a Minister of the State, the Crown in any capacity, or a statutory
authority.
Examples – The State of Queensland, Brisbane City Council.
Non-government party
A non-government party is a party other than a government party who has a non-native title
interest in the whole of the area.
Example - The lessee of a non-exclusive pastoral lease.
Example of section 24FA protection
The State has made a non-claimant application over unallocated State land it wishes to freehold.
The application has been notified and after waiting the required timeframe the section 24FA
requirements are satisfied, eg. there was no native title claim registered at a particular time. The
State is able to freehold the unallocated State land as it is now subject to section 24FA protection.
1
2
Paragraph [8.4] and [8.2], Explanatory Memorandum to the Native Title Amendment Bill 1997
Paragraph [8.22], Explanatory Memorandum to the Native Title Amendment Bill 1997
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module F V3
Chapter 5: Future Acts
4
The requirements for section 24FA protection are very complex and vary depending upon whether
the non-claimant application is made by a government party or non-government party. The
requirements are stricter in relation to government parties.
This Module asks you to answer some initial threshold questions to find out if section 24FA
protection could apply to your proposed dealing area. Based upon your answers to the questions
in Division B, you may be asked to send all the details of your proposed future act to Aboriginal
and Torres Strait Islander Land Services through your NTCO.
This Module is divided into the following four divisions –
A. Does this Module apply to my proposed future act?
B. When the State relies upon section 24FA protection?
C. What does it mean if section 24FA protection applies? and
D. Effect on native title, compensation and decision-making.
A. Does this Module apply to my proposed future
act?
Part 2
Some threshold questions
Following the instructions, answer the questions below to find out if this Module MAY apply to your
proposed future act, ie. could section 24FA protection apply to your proposed dealing area?
Question 1
Is the proposed dealing area covered by a current non-claimant application?
Instructions
Carry out a search in QNTIME (using the native title fill button) to find out whether your proposed
dealing area is covered by a non-claimant application.
Search the application layer in QNTIME for your proposed dealing area.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module F V3
Chapter 5: Future Acts
5
• KARUMBA
•
•
•
•
Repru:ent•t ive Sody
Research
Cu11Llu~iu11
Acquisition
Determination
-
·17.510834101814175 , 140.91216687307164
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module F V3
r
r
r
r
r
Chapter 5: Future Acts
6
The application type will
say “non claimant” if the
application is a nonclaimant application.
Answers If YES, proceed to Question 2. If NO, proceed to Module GB as this Module does not apply.
Question 2
Has the notification period ended or about to end for the non-claimant application?
Under the NTA, the NNTT must notify that a non-claimant application has been
filed with the Federal Court. The notification period is 3 months (starting on the
notification day).
Instructions
Click on the following link http://www.nntt.gov.au/Applications-And-Determinations/SearchApplications/Pages/Search.aspx to go to the NNTT application search page. Enter the NNTT file
number (ie. the QN number in QNTIME) for the non-claimant application to go to the non-claimant
application summary page. Look at the entries for the notification status and notification closing
date.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module F V3
Chapter 5: Future Acts
7
If the notification status
says “complete” this
means that the
notification period has
ended. The notification
closing date is the date on
which the notification
period ends.
Answers
If YES, this Module MAY apply to your proposed future act. Please send all details of your
proposed dealing to Aboriginal and Torres Strait Islander Land Services via your NTCO.
If NO, this Module MAY apply to your proposed future act. However, it is not until the notification
period has ended that the requirements necessary to assess whether section 24FA protection
applies to the proposed dealing area can be considered. You will need to make a decision either
to –
(1)
wait for the notification period to end; or
(2)
continue to work through the batting order in this Chapter and proceed with your proposed
future act under another Module.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module F V3
Chapter 5: Future Acts
8
B. When the State relies upon section 24FA
protection?
Part 3
When the State relies upon section 24FA protection
As noted in Part 1, a major purpose of section 24FA is to ensure the validity of future acts prior to
a determination being made.
Once the section 24FA protection arises, the State may rely upon the protection to progress a
land or resource dealing (future act). That is, the State does not require the Federal Court to make
a determination.
Dealing
Non-claimant
application filed
Section 24FA
protection
arises
Determination as to
whether native title does
not exist or exists
Therefore, once the future act is done and the need for the protection ceases, it is a matter for the
applicant if they wish to continue with the non-claimant application.
Where the effect of the future act on native title is extinguishment, a conclusion is entered into
QNTIME.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module F V3
Chapter 5: Future Acts
9
C. What to do if section 24FA protection applies
Part 4 Aboriginal and Torres Strait Islander Land Services has
advised that section 24FA protection applies to the proposed
dealing area
If you are reading this Part, you have received advice from Aboriginal and Torres Strait Islander
Land Services, through your NTCO, that section 24FA protection applies to the proposed dealing
area.
Section 24FA protection applies in relation to the proposed dealing area at a
particular time only if ALL of the relevant requirements are satisfied at that time. These
requirements may be satisfied on one day but not the next day. Therefore Aboriginal
and Torres Strait Islander Land Services’ advice is only good as at the date of the
advice.
On the day that you do the dealing, you will need to check with
Aboriginal and Torres Strait Islander Land Services that the requirements are still
satisfied.
For example, one of the requirements of section 24FA protection is that the non-claimant
application upon which it is based has not been dismissed, withdrawn or discontinued.
On the day Aboriginal and Torres Strait Islander Land Services provides the advice the
non-claimant application may be current but it may have been subsequently dismissed
or withdrawn which affects the outcome of the advice and your ability to rely upon this
Module.
If your proposed dealing area is subject to section 24FA protection, your proposed future
act will be valid in relation to native title.
There are no procedural rights that must be provided to the native title parties. You should now
complete your Native Title Assessment Form – Annexure 7.1.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module F V3
Chapter 5: Future Acts
10
If your proposed dealing area is NOT subject to section 24FA protection
proceed to Module GB.
D. Effect on native title, compensation and
decision-making
Part 5 What is the effect on native title of an act done under section
24FA protection?
The proposed future act will extinguish any native title rights and interests to the extent of any
inconsistency at common law. For example, if your proposed future act is the grant of freehold,
then native title will be wholly extinguished over the area covered by the grant.
Part 6
Compensation
Compensation for the effect of the future act on native title rights and interests is payable under
section 24FA of the NTA if there is a successful application for compensation. Compensation is
payable by the State where the act is attributable to the State.
Part 7
Who makes the decision whether this module applies?
There are no actual delegations to make decisions in relation to native title under the Native Title
Work Procedures, the NTA or the NTQA.
The native title assessment process is just one part of your decision-making process when
making a decision under legislation, eg. a decision to grant a lease. By carrying out a native title
assessment, you are ensuring your decision complies with the NTA. However, please ensure
that, where requested in this Module, you provide all details about your proposed future
act to Aboriginal and Torres Strait Islander Land Services through your NTCO.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module F V3
Chapter 5: Future Acts
11
If you are unsure how to proceed, your NTCO must be contacted for advice. If the NTCO is
unsure how to proceed, Aboriginal and Torres Strait Islander Land Services must be contacted for
advice.
If this Module does not apply to the proposed future act,
please proceed to the next Module.
eg
im
e
The Batting Order
ac
tr
Fu
tu
re
s24JA
Module L – Low impact future acts
Module K – Facilities for services to the public
Module J – Reservations and leases
s24JAA Module JAA - Public housing and certain government
infrastructure on Indigenous land
s24IA
Modules IB & IC – Pre-existing right-based acts and renewals, etc
s24GE
s24GD
s24FA
s24NA Module M&N – Freehold test
(onshore places), acquisitions,
s24MD
mining, offshore places.
s24LA
s24KA
s24HA
s24GB
Invalid future acts – see Module O
Module H – Water, living aquatic resources, airspace
Module GE – Third party rights on non-exclusive pastoral/agricultural leases
Module GD – off-farm activities directly connected to primary production
Module GB – Primary production on non-exclusive pastoral/agricultural leases
Module F – Section 24FA protection – non-claimant applications
Registered Indigenous land use agreements (see Module AC)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module F V3
Chapter 5: Future Acts
12
Department of Natural Resources and Mines
Module GB
Acts permitting primary production activities on nonexclusive agricultural leases and non-exclusive pastoral
leases
Date: 8 October 2015
Queensland
Government
Module GB
Section 24GB
Acts permitting primary production activities on nonexclusive agricultural leases and non-exclusive pastoral
leases
DOES THE PROPOSED FUTURE ACT FIT WITHIN THIS MODULE? If your proposed future act is NOT taking place on a non-exclusive agricultural lease
or non-exclusive pastoral lease, then this Module does not apply to your proposed
future act. Proceed to Module GD.
This Module helps you assess whether your proposed future act permits primary
production activities, activities associated with or incidental to primary production
activities or farm tourism activities on a non-exclusive pastoral lease or nonexclusive agricultural lease – section 24GB.
For this Module to apply, your proposed future act must not fall within a preceding
Module.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
2
TABLE OF CONTENTS
Part 1
What is section 24GB? ..................................................................................................4
A.
Acts permitting or activities associated with or incidental to primary production
activities ....................................................................................................................... 5
Part 2
Categorising your proposed future act ...........................................................................5
Part 3
Is your proposed future act an act that permits primary production activities or activities associated with or incidental to primary production activities? ........................6
B.
Acts permitting farm tourism activities ..................................................................... 9
Part 4
Is your proposed future act an act that permits farm tourism? ......................................9
C.
Definitions .................................................................................................................. 12
Part 5
What is a non-exclusive agricultural lease and a non-exclusive pastoral lease? .......12
Part 6
What is a primary production activity? .........................................................................13
Part 7
What is an activity associated with or incidental to a primary production activity? .....15
Part 8
What is a farm tourism activity? ...................................................................................16
D.
Effect on native title, compensation and decision-making ................................... 17
Part 9
Does the non-extinguishment principle apply? ............................................................17
Part 10
Is compensation payable for the doing of the future act?............................................17
Part 11
Who makes the decision whether this Module applies?..............................................17
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
3
Part 1
What is section 24GB?
Section 24GB applies to your proposed future act if it –
(a) takes place on a non-exclusive agricultural lease or non-exclusive pastoral lease
granted on or before 23 December 1996 (and is still in force including as renewed on
one or more occasions);
AND
(b) permits or requires the carrying on of –

a primary production activity;
OR

an activity associated with or incidental to a primary production activity being carried out
on the lease;
OR

a farm tourism activity.
Example1
Mr Charlie Ng is the lessee of a pastoral holding (granted in 1965)
through which a non-boundary watercourse runs. Mr Ng has recently
diversified part of his lease to feedlots (requiring a constant supply of
water) and has applied for a development approval under the Sustainable
Planning Act 2009 to install a brand new PumpMaster 2007 water pump. The development
approval will permit an activity associated with or incidental to a primary production activity,
ie. the taking of the water is associated with maintaining animals (the primary production
activity. In this case, the grant of the development approval can proceed in accordance with
this Module.
This Module is divided into the following four divisions –
A. Acts permitting or activities associated with or incidental to primary production activities;
B. Acts permitting farm tourism activities;
C. Definitions; and
D. Effect on native title, compensation and decision-making.
1
Photo is from http://www.dpi.vic.gov.au/CA25677D007DC87D/LUbyDesc/feedlot1995/$File/feedlotcofp1995.jpg
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
4
Division A. Acts permitting or activities
associated with or incidental to
primary production activities
Part 2
Categorising your proposed future act
Only use this Module if your proposed future act falls within one of the categories in the
below table. Once you have assessed the category, use the corresponding requirements in
either Part 3 or Part 4.
Category
1
Type of Category
Grant of a development approval under the Sustainable
Part 3
2000.
Grant of a sales permit under the Forestry Act 1959 for the
4
Part 3
Planning Act 2009 in relation to tree clearing.
Grant of a licence, permit or allocation under the Water Act
3
Part 3
Planning Act 2009 in relation to works for taking water.
Grant of a development approval under the Sustainable
2
Requirements
Part 3
harvesting of timber (where the timber remains on the lease)
NB. Proceed to Module GE if the timber will be taken off the
lease.
5
Approval for a farm tourism activity as the addition of another
Part 4
purpose/use to the lease under section 154 of the Land Act
1994.
6
Approval of the addition of another purpose/use to the
Part 3
lease under section 154 of the Land Act 1994 that does
not fall in Category 5.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
5
If you think that your proposed dealing falls within this Module but does not fall into one of the
above categories seek advice from Aboriginal and Torres Strait Islander Land Services through
your NTCO.
If your proposed future act does not fall into one of the above categories,
proceed to Module GD.
Part 3 Is your proposed future act an act that permits primary
production activities or activities associated with or incidental
to primary production activities?
For your proposed future act to be –

an act permitting a primary production activity; or

an activity that is associated with or incidental to a primary production activity,
it must satisfy ALL of the following requirements –
Requirement 1
Your proposed future act must take place on a non-exclusive agricultural lease or a nonexclusive pastoral lease validly granted on or before 23 December 1996 which is still
in force (including as renewed on one or more occasions).
“non-exclusive pastoral lease” or “non-exclusive agricultural lease”
Refer to Part 5.
“valid”
The grant of the lease must be valid under State legislation and in relation to native title.
State legislation
The grant will not be valid under State legislation if there was no power under legislation to
grant the lease. For example, under the Land Act 1994 the Governor in Council may only grant
freehold over unallocated State land. Therefore, if the Governor in Council granted the freehold
over reserved land the freehold would not be valid as there was no power under the State
legislation.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
6
In relation to native title
In relation to whether the grant of the lease is valid in relation to native title, look at the following
timeline. It is based upon the date the lease was granted, ie. the date of grant not the
commencement date.
1.1.1994
VALID
23.12.1996
VALID only if the whole or
part of the area covered by
the lease was subject to,
at any point in time prior to
1.1.94 –

a valid freehold
estate;

a valid lease (other
than a mining lease);
or

a valid public work.
VALID if the
future act
provisions were
complied with for
the renewal of
the lease. *
If it is NOT valid, you have not satisfied Requirement 1.
* This includes those future acts that would fall within the transitional provisions of the amended NTA. The transitional
provisions of the NTA (Table A – Schedule 5, Part 2, section 3) provide that the original NTA applies to future acts that
took place after 23 December 1996 but before 30 September 1998 as if 
subdivisions G to K of the NTA (disregarding paragraph 24GE(1)(f)), and any related provisions of the NTA, were
included in the original NTA; and

acts to which those Subdivisions apply were permissible future acts.
AND
Requirement 2
While the lease is in force, your proposed future act permits or requires the carrying on ofIf your proposed future act is an act that can already validly occur because of the
non-exclusive pastoral lease, non-exclusive agricultural lease or an existing authority,
ie. the State does not need to grant additional permission, the act can validly
proceed. Please refer to Module AB.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
7
(a) a primary production activity on the area covered by the lease;
“primary production activity”
Refer to Part 6 to help assess whether your proposed future act permits a
primary production activity.
OR
(b) another activity on the area covered by the lease, that is associated with or incidental to
a primary production activity carried out on the lease, provided that, when the activity is
being carried on, the majority of the area covered by the lease is used for primary production
activities.
“activity associated with or incidental to a primary production activity”
Refer to Part 7 to help assess whether your proposed future act permits an
activity associated with or incidental to a primary production activity.
AND
Requirement 3 Your proposed future act does NOT – (a) permit or require mining;
“Mine” is defined in the NTA to include –
(a) explore or prospect for things that may be mined (including things covered by that
expression because of paragraphs (b) and (c)); or
(b) extract petroleum or gas from land or from the bed or subsoil under waters;
(c) quarry;
but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural
surface of the land, or of the bed beneath waters, for the purpose other than:
(d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or
(e) processing the sand, gravel, rocks or soil by non-mechanical means.
OR
(b)
permit or require the majority of a non-exclusive pastoral lease covering an area greater
than 5 000 hectares to be used for purposes other than pastoral purposes.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
8
If your future act satisfies ALL of the above requirements then it may proceed under section 24GB of the NTA and will be valid in relation to native title. You will now need to take the following steps –
Step 1 Complete your Native Title Assessment Form – Annexure 7.1. Step 2
If your proposed future act consists of, or is associated with, or is incidental to–

forest operations;

a horticultural activity;

an aquaculture activity; or

an agricultural activity (only where the agricultural activity will take place on a non-exclusive
pastoral lease),
you must provide a notification and an opportunity to comment to the relevant native title parties
in accordance with Annexure 7.2 and Annexure 7.3.
Step 3 For all other future acts under this Module, there are NO procedural rights.
If your proposed future act does not satisfy ALL of the above
requirements you must consider whether your future act falls within
Module GD.
Division B. Acts permitting farm tourism
activities
Part 4
Is your proposed future act an act that permits farm tourism?
For your proposed future act to be an act permitting a farm tourism activity ALL of the following
requirements must be satisfied. Your proposed future act must -
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
9
Requirement 1 Take place on a non-exclusive agricultural lease or a non-exclusive pastoral lease (“lease”) which was validly granted on or before 23 December 1996 which is still in force (including as
renewed on one or more occasions).
“non-exclusive pastoral lease or non-exclusive agricultural lease”
Refer to Part 4.
“validly granted”
The grant of the lease must be valid under State legislation and in relation to native title.
State legislation
The grant will not be valid under State legislation if there was no power under legislation to
grant the lease. For example, under the Land Act 1994 the Governor in Council may only grant
freehold over unallocated State land. Therefore, if the Governor in Council granted freehold over
reserved land the freehold would not be valid as there was no power under the State legislation.
In relation to native title
In relation to whether the grant of the lease is valid in relation to native title, look at the following
timeline. It is based upon the date the lease was granted, ie. the date of grant not the
commencement date.
23.12.1996
1.1.1994
VALID
VALID only if the whole or
part of the area covered by
the lease was subject to,
at any point in time prior to
1.1.94 –

a valid freehold
estate;

a valid lease (other
than a mining lease);
or

a valid public work.
VALID if the
future act
provisions were
complied with for
the renewal of
the grant.*
If it is NOT valid, you have not satisfied Requirement 1.
This includes those future acts that would fall within the transitional provisions of the amended NTA. The transitional
provisions of the NTA (Table A – Schedule 5, Part 2, section 3) provide that the original NTA applies to future acts that
took place after 23 December 1996 but before 30 September 1998 as if 
subdivisions G to K of the NTA (disregarding paragraph 24GE(1)(f)), and any related provisions of the NTA, were
included in the original NTA; and

acts to which those Subdivisions apply were permissible future acts.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
10
AND
Requirement 2
Permit or require a farm tourism activity in the area covered by the lease. If your proposed future act is an act that can already validly occur because of the
non-exclusive pastoral lease, non-exclusive agricultural lease or an existing authority,
ie. the State does not need to grant additional permission, you can validly proceed
with your act. Please refer to Module AB.
“farm tourism activity”
Refer to Part 8. This Part will help you assess whether your proposed future act permits a farm
tourism activity.
AND
Requirement 3
NOT permit farm tourism that includes observing activities or cultural works of Aboriginal peoples
or Torres Strait Islanders.
Where possible this requirement should be made a condition of the approval or
inserted as an amendment to the lease conditions.
AND
Requirement 4
NOT permit or require the majority of a non-exclusive pastoral lease covering an area greater
than 5 000 hectares to be used for purposes other than pastoral purposes.
If your proposed future act satisfies ALL of the above requirements then it may proceed under section 24GB of the NTA and will be valid in relation to native title. You will now need to take the following steps –
Step 1 Complete your Native Title Assessment Form – Annexure 7.1. Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
11
Step 2
If your proposed future act is associated with, or is incidental to–

forest operations;

a horticultural activity;

an aquaculture activity; or

an agricultural activity (only where the agricultural activity will take place on a non-exclusive
pastoral lease),
you must provide a notification and an opportunity to comment to the relevant native title parties
in accordance with Annexure 7.2 and Annexure 7.3.
Step 3 For all other future acts under this Module, there are NO procedural rights.
If your proposed future act does not satisfy ALL of the above
requirements you must consider whether your future act falls within
Module GD. Proceed to Module GD.
Division C. Definitions
Part 5 What is a non-exclusive agricultural lease and a non-exclusive
pastoral lease?
Non-exclusive agricultural lease
A lease is a non-exclusive agricultural lease if it –
(a) (i) permits the lessee to use the land or waters covered by the lease solely or primarily for
agricultural purposes (which includes the planting and growing in the land of trees, vines
or vegetables) N.B. An agricultural lease also includes a lease that permits the lessee to
use the land or waters covered by the lease solely or primarily for aquacultural
purposes2;
OR
2
Section 247, NTA.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
12
(ii) contains a statement to the effect that it is solely or primarily an agricultural lease or that
it is granted solely or primarily for agricultural purposes;
AND
(b) does not give a right of exclusive possession to the lessee or is not a Scheduled Interest.3
Non-exclusive pastoral lease
A lease is a non-exclusive pastoral lease if it –
(a) permits the lessee to use the land or waters covered by the lease solely or primarily for:
(i)
maintaining or breeding sheep, cattle or other animals; OR
(ii)
any other pastoral purpose;
OR
(b) contains a statement to the effect that it is solely or primarily a pastoral lease or that it is
granted solely or primarily for pastoral purposes4;
AND
(c) does not give a right of exclusive possession to the lessee or is not a Scheduled Interest.5
Examples
Pastoral Leases

Term lease for pastoral purposes

Pastoral Holding
Part 6
What is a primary production activity?
Ordinary meaning of primary production
In addition to the definitions below, “primary production activity” also includes activities that fall
within the ordinary meaning of primary production.
3
Section 247A and s247B, NTA
Section 248, NTA
5
Section 248A and s248B, NTA
4
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
13
A primary production activity can be described as any activity involved in the growing,
producing, maintaining or extracting of natural resources.6 For example, natural resources
would include all naturally occurring materials, eg. all plants and other living organisms, which
are capable of economic exploitation.7
IMPORTANT
The definition of primary production activity specifically excludes mining.
In most cases
quarrying will be mining under the definition of “mine” in the NTA – refer to Requirement 3(a) in
Part 3.
A primary production activity is defined to include the following –
(a) cultivating land;
Definition under the Explanatory Memorandum
The preparation and use (including watering, fertilising or spraying) of soil for crops, animal
pasture and market gardening and the raising and production of plants, including harvesting.
(b) maintaining, breeding, agisting animals;
Definitions under the Explanatory Memorandum

Animals
The word “animals” includes reptiles, birds and insects (eg. crocodiles, poultry, emus and
bees).

Maintaining, breeding
Maintaining and breeding animals could be for a number of purposes, such as selling them
or their bodily produce (including natural increase) or maintaining them for tourism purposes.

Agistment
Agistment of animals would ordinarily mean taking in and feeding or pasturing animals for a
fee.
(c) taking or catching fish or shellfish;
Definitions under the Explanatory Memorandum
Shellfish include oysters and crustacea (such as crabs and yabbies).
6
7
Paragraph 9.13, Explanatory Memorandum to the Native Title Amendment Bill 1997
Paragraph 9.14, Explanatory Memorandum to the Native Title Amendment Bill 1997
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
14
(d) forest operations;
Definition under section 253 of the NTA

the planting or tending, in a plantation or forest, of trees intended for felling; or

the felling of such trees.
(e) horticultural activities;
Definition under section 253 of the NTA
This includes 
propagation or maintenance, as well as cultivation; or

propagation, maintenance or cultivation –
- of seeds, bulbs, spores or similar things; or
- of fungi; or
- in environments other than soil, whether natural or artificial.
(f) aquacultural activities; and
Definition under the Explanatory Memorandum
Aquaculture means breeding, keeping and harvesting fish or shellfish and the propagation,
maintenance, cultivation and harvesting of aquatic plants.
(g) leaving fallow or de-stocking any land in connection with the doing of any thing that is a
primary production activity.
Definitions under the Explanatory Memorandum
This recognises that primary production may require land to be left uncultivated or destocked for periods of time.
Part 7 What is an activity associated with or incidental to a primary
production activity?
An activity is associated with or incidental to a primary production activity, if the following
requirements are satisfied –
For an activity to be associated with or incidental to primary production activity it needs to be
related to the primary production activity, and not separate or divided from it.
NB. The Macquarie Dictionary defines –
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
15
“associated with” as including - to connect by some relation, as in thought…to
unite…combine…anything usually accompanying another.
“incidental to” as including – happening…with something else.
Requirement 1
The activity must be associated with or incidental to a primary production activity listed in Part
5 of this Module.
AND
Requirement 2
The majority of the non-exclusive lease area must continue to be used for primary production
activities whilst the associated or incidental activity is being carried out.
Examples in the Explanatory Memorandum8

the construction and use of housing for use by leaseholders and other persons working on or
visiting a farm;

recreational activities by leaseholders and other persons working on or visiting a farm;

in connection with the running of a pastoral operation, the construction and use of an airstrip,
a power supply, a water supply, fencing, roads, dams, embankments and soil conservation
works;

the sale and transport of livestock;

the storage of material for use in conducting primary production activities;

the operation of machine shops to make or repair equipment used in cultivating land or
maintaining animals;

pasture management;

culling of wildlife and control of feral animals; and

the running of a general store (‘station store’) in a remote area.
Part 8
What is a farm tourism activity?
Farm tourism is not confined to farmstay tourism but extends to any tourism that takes place in
relation to a farm operation.9
8
9
Paragraph 9.34, Explanatory Memorandum to the Native Title Amendment Bill 1997
Paragraphs 9.27 and 9.28, Explanatory Memorandum to the Native Title Amendment Bill 1997
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
16
Examples under the Explanatory Memorandum

day tours of a farming operation;

overnight stays on a farm;

observing or becoming involved in primary production activities;

observing and enjoying the natural environment and non-Indigenous cultural activities or
sites; and

observing natural objects (rock formations, landscapes, vistas) or wildlife, etc.
IMPORTANT - Exclusion
Section 24GB specifically excludes future acts that permit or require tourism that involves
observing activities or cultural works (eg. rock art) of Aboriginal peoples or Torres Strait
Islanders.
Division D. Effect on native title, compensation
and decision-making
Part 9
Does the non-extinguishment principle apply?
Yes. The non-extinguishment principle applies to all future acts done under this Module.
This means that native title rights and interests affected by the doing of the future act continue to exist and are not extinguished. However, while the future act exists, those native title rights and interests inconsistent with the future act are not able to be exercised or enjoyed. Part 10
Is compensation payable for the doing of the future act?
Compensation for the effect of the future act on native title rights and interests is payable under
section 24GB if there is a successful application for compensation by the relevant native title
holders. Compensation is payable by the State where the act is attributable to the State, eg. the
grant of an authority under State legislation by the State is an act attributable to the State..
Part 11
Who makes the decision whether this Module applies?
There are no actual delegations to make decisions in relation to native title under the Native Title
Work Procedures, the NTA or the NTQA.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
17
The native title assessment process is just one part of your decision-making process when
making a decision under legislation, eg. a decision to grant a permit. By carrying out a native
title assessment, you are ensuring your decision complies with the NTA.
If the decision-maker is unsure how to proceed, your NTCO must be contacted for advice. If the
NTCO is unsure how to proceed, the NTCO must contact Indigenous Services for advice.
If this Module does not apply to the proposed future act, please proceed to the next module.
eg
im
e
The Batting Order
ac
tr
s24KA
Fu
tu
re
s24JA
Module L – Low impact future acts
Module K – Facilities for services to the public
Module J – Reservations and leases
s24JAA Module JAA - Public housing and certain government
infrastructure on Indigenous land
s24HA
s24GE
s24GD
s24FA
s24NA Module M&N – Freehold test
(onshore places), acquisitions,
s24MD
mining, offshore places.
s24LA
s24IA
s24GB
Invalid future acts – see Module O
Modules IB & IC – Pre-existing right-based acts and renewals, etc
Module H – Water, living aquatic resources, airspace
Module GE – Third party rights on non-exclusive pastoral/agricultural leases
Module GD – off-farm activities directly connected to primary production
Module GB – Primary production on non-exclusive pastoral/agricultural leases
Module F – Section 24FA protection – non-claimant applications
Registered Indigenous land use agreements (see Module AC)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GB V2
Chapter 5: Future Acts
.
18
Depa rt ment of Natura l Resources an d M ines
Module GD
Future acts permitting off-farm activities that are
directly connected to primary production activities
Date: 8 October 2015
•
Queensland
Government
Module GD
Section 24GD
Future acts permitting off-farm activities that are directly
connected to primary production activities
DOES THE PROPOSED FUTURE ACT FIT WITHIN THIS MODULE? This Module applies if your proposed future act is an act that permits off-farm
activities that are directly connected to primary production activities on a
freehold estate, agricultural lease or pastoral lease.
Off-farm activities involve the carrying on of grazing or gaining of access to or
taking of water.
For this Module to apply, your proposed future act must not fall within a
preceding Module.
If your proposed future act does not permit the carrying on of grazing or
gaining access to or taking water, then this Module does not apply. Proceed
to Module GE.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GD V2
Chapter 5: Future Acts
2
TABLE OF CONTENTS
Part 1
What is section 24GD? ........................................................................................... 4
Part 2
Steps for using this Module .................................................................................... 4
A.
Future acts permitting off-farm activities
Part 3
Is my proposed future act an act that permits off-farm activities? .......................... 5
B.
Definitions
Part 4
What is a freehold estate, agricultural lease or pastoral lease?............................. 8
Part 5
What is a near or adjoining area? ........................................................................ 10
Part 6
What is carrying on a grazing activity? ................................................................. 10
Part 7
What is gaining access to or taking water? .......................................................... 11
Part 8
What is a primary production activity?.................................................................. 11
C.
Effect on native title, compensation and decision-making
Part 9
Does the non-extinguishment principle apply?...................................................... 13
Part 10
Is compensation payable for the doing of the future act? ..................................... 13
Part 11
Who makes the decision whether this Module applies? ....................................... 14
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GD V2
Chapter 5: Future Acts
3
Part 1
What is section 24GD?
Section 24GD applies to your proposed future act if it permits or requires the carrying on of 
grazing;
OR

an activity consisting of, or relating to, gaining access to or taking water,
on an area adjoining or near the area covered by a freehold estate, agricultural lease or
pastoral lease granted on or before 23 December 1996.
However, your proposed future act must be directly connected to a primary
production activity currently carried out on the freehold estate, agricultural
lease or pastoral lease.
Part 2
Steps for using this Module
Step 1
If there is a determination of native title over your proposed dealing area that recognises
that the native title holders have exclusive possession of the land and/or waters, this
Module does NOT apply.
You will now need to consider whether your proposed future act falls
within Module GE. Proceed to Module GE.
QNTIME
Check QNTIME to see if there is a determination that native title exists
over the proposed dealing area, ie. the near or adjoining area. You will
need to read the determination to see if it recognises exclusive
possession over your proposed dealing area.
If you are not sure if the determination recognises exclusive possession
over your proposed dealing area, provide all details to Aboriginal and
Torres Strait Islander Land Services through your NTCO.
IF there is no determination of native title go to Step 2.
IF there is a determination but it does not recognise exclusive possession over the
proposed dealing area go to Step 2.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GD V2
Chapter 5: Future Acts
4
Step 2
Proceed to Part 3 to consider whether your proposed future act meets all the requirements for
this Module to apply.
This Module is divided into the following 3 divisions –
A. Future acts permitting off-farm activities;
B. Definitions; and
C. Effect on native title, compensation and decision-making.
Division A. Future acts permitting off-farm
activities
Part 3 Is my proposed future act an act that permits off-farm
activities?
For your proposed future act to be an act permitting off-farm activities under section 24GD it must satisfy ALL of the following requirements - Requirement 1 The proposed future act must take place on an area adjoining or near the area covered by – 
a freehold estate whilst that estate exists;
OR

an agricultural lease or a pastoral lease which is still in force (including as renewed on
one or more occasions),
validly granted on or before 23 December 1996.
“freehold estate”,” agricultural lease” or “pastoral lease”
Refer to Part 4 for definitions of these terms.
“adjoining” or “near”
Refer to Part 5 for definitions of these terms.
“validly granted”
The grant of the lease or freehold estate must be valid under State legislation and in relation
to native title.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GD V2
Chapter 5: Future Acts
5
State legislation
The grant will not be valid under State legislation if there was no power under legislation to
carry out the grant under the relevant legislation. For example, the Governor in Council may
grant freehold over unallocated State land. Therefore, if the Governor in Council granted
reserved land as freehold it would not be valid under State legislation as there was no power
under legislation.
In relation to native title
In relation to whether the grant of the lease or freehold estate is valid in relation to native
title, look at the following timeline to see whether the lease is valid. It is based upon the date
the lease or the freehold estate was granted, ie. the date of grant not the commencement
date, and the date the lease was renewed (if applicable).
23.12.1996
1.1.1994
VALID
VALID only if the whole or
part of the area covered by
the grant was subject to, at
any point in time prior to
1.1.94 –
 a valid freehold
estate;
 a valid lease (other
than a mining
lease); or
 a valid public work.
VALID if the
future act
provisions were
complied with for
the renewal of
the lease.*
If it is NOT valid, you have not satisfied Requirement 1.
* This includes those future acts that would fall within the transitional provisions of the amended NTA. The
transitional provisions of the NTA (Table A – Schedule 5, Part 2, section 3) provide that the original NTA applies to
future acts that took place after 23 December 1996 but before 30 September 1998 as if 
subdivisions G to K of the NTA (disregarding paragraph 24GE(1)(f)), and any related provisions of the NTA,
were included in the original NTA; and

acts to which those Subdivisions apply were permissible future acts.
AND
Requirement 2 The proposed future act permits or requires – “permits or requires”
The use of the words “permits or requires” means that section 24GD covers activities that
require the grant of a permit, licence or authority before they can be carried out.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GD V2
Chapter 5: Future Acts
6

the carrying on of grazing;
“grazing”
Refer to Part 6 for a definition of grazing.
OR

an activity consisting of, or relating to, gaining access to or taking water.
“gaining access to or taking water”
Refer to Part 7 for a definition of gaining access to or taking water.
AND
Requirement 3
The proposed future act is directly connected to the carrying on of any primary
production activity on the area covered by the freehold estate, agricultural lease or pastoral
lease.
“primary production activity”
Refer to Part 8 for a definition.
Examples
Mrs Sally Somercote is the lessee of a pastoral lease on which she carries out grazing.
Sally has applied to the State for a permit to occupy to graze cattle over an area
adjoining her lease, as she would like to increase her herd of cattle. This is an off-farm
activity directly connected to the primary production activity being undertaken on the
pastoral lease.
Mr James McFly is the lessee of an agricultural lease on which he grows crops. James
needs an alternative water supply to ensure that his crops are well watered. James has
approached the State to find out whether he can apply for a licence to take water from a
nearby watercourse. This is an off-farm activity directly connected to the primary
production activity being undertaken on the agricultural lease.
AND
Requirement 4
The proposed future act does not prevent native title holders in relation to land or waters in
the area in which the activity will be carried on from having reasonable access to the area.
AND
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GD V2
Chapter 5: Future Acts
7
Requirement 5 The proposed future act is NOT – (a) the grant of a lease;
OR
(b) an act that confers a right of exclusive possession (ie. possession against the rights of
all others) over the land or waters.
If your proposed future act does not satisfy ALL of the above
requirements you must consider whether your future act falls within
Module GE. Proceed to Module GE.
If your future act satisfies ALL of the above requirements then it may proceed under section 24GD of the NTA and will be valid in relation to native title. You will now need to take the following steps –
Step 1 Complete your Native Title Assessment Form – Annexure 7.1. Step 2
Provide a notification and an opportunity to comment to the relevant native title parties, in
accordance with Annexure 7.2 and Annexure 7.3.
Division B. Definitions
Part 4 What is a freehold estate, agricultural lease or pastoral
lease?
Freehold estate
A freehold estate includes an estate in fee simple, a deed of grant of land, etc.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GD V2
Chapter 5: Future Acts
8
Agricultural lease or pastoral lease
Agricultural and pastoral leases are leases that are granted for agricultural or pastoral
purposes, respectively. For the purposes of section 24GD, it does not matter whether the
lease is a non-exclusive lease or an exclusive lease, i.e. a PEPA.
Agricultural lease
A lease is an agricultural lease if it –
(a) permits the lessee to use the land or waters covered by the lease solely or primarily for
agricultural purposes (which includes the planting and growing in the land of trees, vines
or vegetables) N.B. An agricultural lease also includes a lease that permits the lessee to
use the land or waters covered by the lease solely or primarily for aquacultural purposes1;
OR
(b) contains a statement to the effect that it is solely or primarily an agricultural lease or that it
is granted solely or primarily for agricultural purposes.
Example
Agricultural leases

an agricultural farm
Pastoral lease
A lease is a pastoral lease if it –
(a) permits the lessee to use the land or waters covered by the lease solely or primarily for:
(i)
maintaining or breeding sheep, cattle or other animals; or
(ii)
any other pastoral purpose;
OR
(b) contains a statement to the effect that it is solely or primarily a pastoral lease or that it is
granted solely or primarily for pastoral purposes.2
Examples
Pastoral Leases

Term lease for pastoral purposes

Pastoral holding

Grazing Homestead Perpetual Lease

Special lease for grazing purposes
1
2
Section 247, NTA
Section 248, NTA
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GD V2
Chapter 5: Future Acts
9
Part 5
What is a near or adjoining area?
Your proposed future act must be done on an area adjoining or near a freehold estate, pastoral lease or agricultural lease. Adjoining The Macquarie Dictionary defines adjoining as “bordering; contiguous”. The land or waters should share a common boundary with the freehold estate, agricultural lease or pastoral lease. Please refer to Diagram 1 in Part 6. Near
The Macquarie Dictionary defines near as including “close; near by; at, within, or to a short
distance.” Common sense must guide whether the area can be said to be near to the freehold estate, agricultural lease or pastoral lease. For example, what is near in a rural area may be different
from what is near in a town area. Please refer to Diagram 2 in Part 7. Part 6
What is carrying on a grazing activity?
Your proposed future act must permit or require the carrying on of a grazing activity.
Examples
The grant of a permit to occupy under the Land Act 1994 to graze cattle in an area adjoining a
pastoral lease where cattle are also grazed. Please see Diagram 1 below.
The grant of stock grazing permit under the Forestry Act 1959 to graze cattle on part of the
adjoining State Forest.
Diagram 1
Pastoral lease
granted in
1968
Primary
production
activity carried
out is grazing
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GD V2
Proposed future
act = Permit to
occupy for
grazing on
adjoining area
Chapter 5: Future Acts
10
Part 7
What is gaining access to or taking water?
Your proposed future act must permit or require an activity consisting of, or relating to, gaining
access to, or taking water.
Examples
Gaining access to water
The grant of a development approval under the Sustainable Planning Act 2009 to establish
facilities associated with an aquaculture project where the operation is located on freehold
land and the facilities to be approved are located in the adjoining river.
Taking water
The grant of a development approval under the Sustainable Planning Act 2009 to construct
works to take water from an area adjoining or near a pastoral lease to water stock grazing on
that pastoral lease.
The conferral of rights to construct a water pipeline to take water from an area that is near a
freehold estate, where the water is required for the irrigation of crops on the freehold estate.
Please see Diagram 2.
Diagram 2
Freehold
estate granted
in 1990
Primary
production
activity carried
out is
agriculture
Part 8
Near area
Proposed future act = Water pipeline approval
What is a primary production activity?
Ordinary meaning of primary production
In addition to the below definitions, “primary production activity” also includes activities that
fall within the ordinary meaning of primary production.
A primary production activity can be described as any activity involved in the growing,
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GD V2
Chapter 5: Future Acts
11
producing, maintaining or extracting of natural resources.3 For example, natural resources
would include all naturally occurring materials, eg. all plants and other living organisms, which
are capable of economic exploitation.4
IMPORTANT
The definition of primary production activity specifically excludes mining. In most cases
quarrying will be mining under the definition of “mine” under the NTA.
Please refer to
Annexure 8.6.
A primary production activity is defined to include the following –
(a) cultivating land;
Definition under the Explanatory Memorandum
The preparation and use (including watering, fertilising or spraying) of soil for crops,
animal pasture and market gardening and the raising and production of plants, including
harvesting.
(b) maintaining, breeding, agisting animals;
Definitions under the Explanatory Memorandum

Animals
The word “animals” includes reptiles, birds and insects (eg. crocodiles, poultry, emus and
bees).

Maintaining, breeding
Maintaining and breeding animals could be for a number of purposes, such as selling
them or their bodily produce (including natural increase) or maintaining them for tourism
purposes.

Agistment
Agistment of animals would ordinarily mean taking in and feeding or pasturing animals for
a fee.
(c) taking or catching fish or shellfish;
Definitions under the Explanatory Memorandum
Shellfish include oysters and crustacea (such as crabs and yabbies).
(d) forest operations;
Definition under section 253 of the NTA
3
4

the planting or tending, in a plantation or forest, of trees intended for felling; or

the felling of such trees.
Paragraph 9.13, Explanatory Memorandum to the Native Title Amendment Bill 1997
Paragraph 9.14, Explanatory Memorandum to the Native Title Amendment Bill 1997
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GD V2
Chapter 5: Future Acts
12
(e) horticultural activities;
Definition under section 253 of the NTA
This includes 
propagation or maintenance, as well as cultivation; or

propagation, maintenance or cultivation –
- of seeds, bulbs, spores or similar things; or
- of fungi; or
- in environments other than soil, whether natural or artificial.
(f) aquacultural activities; and
Definition under the Explanatory Memorandum
Aquaculture means breeding, keeping and harvesting fish or shellfish and the
propagation, maintenance, cultivation and harvesting of aquatic plants.
(g) leaving fallow or de-stocking any land in connection with the doing of any thing that is a
primary production activity.
Definitions under the Explanatory Memorandum
This recognises that primary production may require land to be left uncultivated or destocked for periods of time.
Division C. Effect on native title,
compensation and decision-making
Part 9
Does the non-extinguishment principle apply?
Yes. The non-extinguishment principle applies to all future acts done under section 24GD.
This means that native title rights and interests affected by the doing of the future act continue
to exist and are not extinguished. However, while the future act exists, those native title rights
and interests inconsistent with the future act are not able to be exercised or enjoyed.
Part 10
Is compensation payable for the doing of the future act?
Compensation for the effect of the future act on native title rights and interests is payable
under section 24GD if there is a successful application for compensation. Compensation is
payable by the State where the act is attributable to the State.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GD V2
Chapter 5: Future Acts
13
Part 11
Who makes the decision whether this Module applies?
There are no actual delegations to make decisions in relation to native title under the Native
Title Work Procedures, the NTA or the NTQA.
The native title assessment process is just one part of your decision-making process when
making a decision under legislation, eg. a decision to grant a permit to occupy for grazing. By
carrying out a native title assessment, you are ensuring your decision complies with the NTA.
If the decision-maker is unsure how to proceed, your NTCO must be contacted for advice. If
the NTCO is unsure how to proceed, the NTCO must contact Aboriginal and Torres Strait
Islander Land Services for advice.
If this Module does not apply to the proposed future act,
please proceed to the next Module.
eg
im
e
The Batting Order
ac
tr
s24KA
Fu
tu
re
s24JA
Module L – Low impact future acts
Module K – Facilities for services to the public
Module J – Reservations and leases
s24JAA Module JAA - Public housing and certain government
infrastructure on Indigenous land
s24HA
s24GE
s24GD
s24FA
s24NA Module M&N – Freehold test
(onshore places), acquisitions,
s24MD
mining, offshore places.
s24LA
s24IA
s24GB
Invalid future acts – see Module O
Modules IB & IC – Pre-existing right-based acts and renewals, etc
Module H – Water, living aquatic resources, airspace
Module GE – Third party rights on non-exclusive pastoral/agricultural leases
Module GD – off-farm activities directly connected to primary production
Module GB – Primary production on non-exclusive pastoral/agricultural leases
Module F – Section 24FA protection – non-claimant applications
Registered Indigenous land use agreements (see Module AC)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GD V2
Chapter 5: Future Acts
14
Department of Natural Resources and Mines
Module GE
Granting rights to take timber and quarry materials
on non-exclusive pastoral leases and non-exclusive
agricultural leases
Date: 8 October 2015
Queensland
Government
Module GE
Section 24GE
Granting rights to take timber and quarry materials on
non-exclusive pastoral leases and non-exclusive
agricultural leases
DOES THE PROPOSED FUTURE ACT FIT WITHIN THIS MODULE? This Module applies if your proposed future act permits any person (including
the lessee) to –
(a) cut and remove timber; OR
(b) extract, obtain or remove sand, gravel, rocks, soil or other quarry materials,
from the area covered by a non-exclusive agricultural lease or a non-exclusive
pastoral lease.
For this Module to apply, your proposed future act must not fall within a
preceding Module.
If your proposed future act is NOT taking place on a non-exclusive agricultural
lease or a non-exclusive pastoral lease, then this Module cannot apply.
Proceed to Module H.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GE V2
Chapter 5: Future Acts
2
TABLE OF CONTENTS
Part 1
What is section 24GE?............................................................................................... 4 A.
Acts permitted under section 24GE ........................................................................4 Part 2
Is my proposed future act an act permitted under section 24GE?............................. 4 B.
Definitions ..................................................................................................................7 Part 3
What is a non-exclusive agricultural lease or non-exclusive pastoral lease? ............ 7 Part 4
What does it mean to cut and remove timber? .......................................................... 8 Part 5
What does it mean to extract, obtain or remove sand, gravel, rocks, soil or other quarry materials? ..................................................................................................... 10 C.
Effect on native title, compensation and decision-making ............................... 11
Part 6
Does the non-extinguishment principle apply? ........................................................ 11 Part 7
Is compensation payable for the doing of the future act? ........................................ 11 Part 8
Who makes the decision whether this module applies? .......................................... 11 Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GE V2
Chapter 5: Future Acts
3
Part 1
What is section 24GE?
Section 24GE of the NTA applies to your proposed future act if it permits any person
(including the lessee) to 
cut and remove timber;
OR

extract, obtain or remove sand, gravel, rocks, soil or other quarry materials
(provided this is not mining under the NTA),
on a non-exclusive agricultural lease or a non-exclusive pastoral lease granted on or
before 23 December 1996 and still in force (including as renewed on one or more occasions).
This Module is divided into the following three divisions –
A. Acts permitted under section 24GE;
B. Definitions; and
C. Effect on native title, compensation and decision-making.
Division A. Acts permitted under section 24GE
Part 2 Is my proposed future act an act permitted under section
24GE?
For your proposed future act to be an act permitted under section 24GE of the NTA it must
satisfy ALL of the following requirements –
Requirement 1
The proposed future act will take place on a non-exclusive agricultural lease or a nonexclusive pastoral lease (the lease).
“non-exclusive pastoral lease” and “non-exclusive agricultural lease”
Refer to Part 3 for their definitions.
AND Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GE V2
Chapter 5: Future Acts
4
Requirement 2
The lease was granted on or before 23 December 1996 (including as renewed on one or
more occasions).
AND
Requirement 3 The grant (and any renewal) of the lease was valid.
“valid”
The grant of the lease must be valid under State legislation and in relation to native title.
State legislation
The grant will not be valid under State legislation if there was no power under legislation.
For example, under the Land Act 1994 the Governor in Council may grant freehold over
unallocated State land. Therefore, if the Governor in Council granted freehold over reserved
land the freehold grant would not be valid.
In relation to native title
In relation to whether the grant of the lease is valid in relation to native title, look at the
following timeline to see whether the lease is valid. It is based upon the date the lease was
granted, ie. the date of grant not the commencement date, and the date of renewal (if
applicable).
1.1.1994
VALID
23.12.1996
VALID only if the whole or
part of the area covered by
the lease was subject to,
at any point in time prior to
1.1.1994 –
 a valid freehold
estate;
 a valid lease (other
than a mining
lease); or
 a valid public work.
VALID if the
future act
provisions were
complied with for
the renewal of
the lease.*
* This includes those future acts that would fall within the transitional provisions of the amended NTA. The
transitional provisions of the NTA (Table A – Schedule 5, Part 2, section 3) provide that the original NTA applies to
future acts that took place after 23 December 1996 but before 30 September 1998 as if 
subdivisions G to K of the NTA (disregarding paragraph 24GE(1)(f)), and any related provisions of the NTA,
were included in the original NTA; and

acts to which those Subdivisions apply were permissible future acts.
AND
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GE V2
Chapter 5: Future Acts
5
Requirement 4
The proposed future act is the grant of a licence, permit or authority, over the area covered by
the lease, that provides a right to –
(a) cut and remove timber;
“cut and remove timber”
Refer to Part 4 to assess whether your proposed future act is the cutting and
removing of timber.
OR
(b) extract, obtain or remove sand, gravel, rocks, soil or other
quarry materials
(provided it is not mining under the NTA);
Refer to Part 5 to assess whether your proposed future act is one of the above
acts.
IMPORTANT
Your proposed future act must not satisfy the definition of ‘mine’
under the NTA.
AND
Requirement 5 The proposed future act is NOT the grant of a lease.
If your proposed future act does not satisfy ALL of the above
requirements you must consider whether your proposed future
act falls within the next Module. Proceed to Module H.
If your future act satisfies ALL of the above requirements then it may proceed under section 24GE of the NTA and is valid in relation to native title. You will now need to take the following steps –
Step 1 Complete your Native Title Assessment Form – Annexure 7.1. Step 2
Provide a notification and an opportunity to comment to the relevant native title parties in
accordance with Annexure 7.2 and Annexure 7.3.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GE V2
Chapter 5: Future Acts
6
Division B. Definitions
Part 3 What is a non-exclusive agricultural lease or non-exclusive
pastoral lease?
Non-exclusive agricultural lease
A lease is a non-exclusive agricultural lease if it –
(a) (i) permits the lessee to use the land or waters covered by the lease solely or primarily for
agricultural purposes (which includes the planting and growing in the land of trees,
vines or vegetables). N.B. An agricultural lease also includes a lease that permits the
lessee to use the land or waters covered by the lease solely or primarily for
aquacultural purposes1;
OR
(ii) contains a statement to the effect that it is solely or primarily an agricultural lease or
that it is granted solely or primarily for agricultural purposes;
AND
(b) does not give a right of exclusive possession on the lessee or is not a Scheduled
Interest.2
Non-exclusive pastoral lease
A lease is a non-exclusive pastoral lease if it –
(a) (i) permits the lessee to use the land or waters covered by the lease solely or primarily for
maintaining or breeding sheep, cattle or other animals OR any other pastoral purpose;
OR
(ii) contains a statement to the effect that it is solely or primarily a pastoral lease or that it
3
is granted solely or primarily for pastoral purposes ;
AND
1
2
3
Section 247, NTA.
s247A and s247B, NTA
s248, NTA
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GE V2
Chapter 5: Future Acts
7
(b) does not give a right of exclusive possession on the lessee or is not a Scheduled
Interest.4
Examples of non-exclusive pastoral leases

Term lease for pastoral purposes

Special lease for grazing purposes

Pastoral holding
Part 4
What does it mean to cut and remove timber? Your proposed future act must give both a right to cut timber AND a right to remove timber. If there is only removal of timber without cutting or the cutting without removal, this
Module does not apply. For example, the collection of deadwood lying on the ground
does NOT fall within this Module as this is the removal of timber without cutting.
The following pictures are examples of cutting (pictures A and B) and removal of timber
(picture C).
A. Cutting of a standing tree
B.
Cross
cutting
of
a
previously fallen/dead tree or
C. Removal of the cut timber
from the lease area
branch
Other Examples
A government grant to a commercial operator of an authority to take a specified amount of
forest product from a non-exclusive pastoral lease.5
The grant of a sales permit under the Forestry Act 1959 to the lessee or a third party for the
sale of timber from a non-exclusive pastoral lease which will involve the cutting and removing
of timber from the lease area.
4
5
s248A and s248B, NTA
Paragraph 9.35, Explanatory Memorandum to the Native Title Amendment Bill 1997.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GE V2
Chapter 5: Future Acts
8
What does the term “timber” mean?
The Macquarie Dictionary defines timber as including 
wood, especially when suitable for building houses, ships, etc or for use in carpentry,
joinery, etc;

the wood of growing trees suitable for structural uses;

the trees themselves.
The Macquarie Dictionary includes the following in its definition for “tree” - a perennial plant
having a permanent, woody, self-supporting main stem or trunk, usually growing to a
considerable height, and usually developing branches at some distance from the ground; any
of various shrubs, bushes, and herbaceous plants, as the banana, resembling a tree in form
or size.
Therefore, timber includes standing or fallen trees/branches but would not include wildflowers
or foliage.
What does “cutting and removing” mean?
The Macquarie Dictionary defines –
(a) cut as including–

to penetrate with a sharp-edged instrument;

to divide with a sharp-edged instrument; sever; carve;

to hew or saw down; fell: to cut timber;

to detach with a sharp-edged instrument; lop off;

to hollow out; excavate; dig: cut a trench.
(b) remove as including –

to move from a place or position; take away; take off;

to move or shift to another place or position;

to move from one place to another, esp. to another locality or residence.
For this Module to apply “remove” means to physically remove the
timber off the lease area, and not moving it to another location
within the lease area.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GE V2
Chapter 5: Future Acts
9
Part 5 What does it mean to extract, obtain or remove sand, gravel,
rocks, soil or other quarry materials?
Your proposed future act must give a right to extract, obtain or remove sand, gravel, rocks,
soil or other quarry materials.
“other quarry materials”
This term would include clay, stones and earth.
Examples
The grant of a sales permit under the Forestry Act 1959 to Mr Jim McTavish to remove gravel
and soil from a non-exclusive pastoral lease which is the leftover spoil from the excavation of
a dam on his non-exclusive pastoral lease.
The grant of a sales permit to a landscaping business to permit the collection of stones and
rocks which are lying on the surface of the land within a pastoral holding.
The activity authorised must NOT constitute mining under the NTA.
To help you assess whether the activity will be considered mining for the purposes of the
NTA, you need to consider Annexure 8.6 of these Procedures.
“Mine” is defined in the NTA to include –
(a) explore or prospect for things that may be mined (including things covered by that
expression because of paragraphs (b) and (c)); or
(b) extract petroleum or gas from land or from the bed or subsoil under waters;
(c) quarry;
but does not include extract, obtain or remove sand, gravel, rocks or soil from the
natural surface of the land, or of the bed beneath waters, for a purpose other than:
(d) extracting, producing or refining minerals from the sand, gravel, rocks or soil; or
(e) processing the sand, gravel, rocks or soil by non-mechanical means.
In summary, this means that quarrying is “mining” under the NTA where –
(a) it goes beyond the natural surface of the land;
or
(b) it does not go beyond the natural surface of the land but is done for the purpose of
extracting etc minerals or processing the material by non-mechanical means is also “mining”
under the NTA.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GE V2
Chapter 5: Future Acts
10
Division C. Effect on native title, compensation
and decision-making
Part 6
Does the non-extinguishment principle apply?
Yes. The non-extinguishment principle applies to all future acts done under section 24GE.
This means that native title rights and interests affected by the doing of the future act continue
to exist and are not extinguished. However, while the future act exists, those native title rights
and interests inconsistent with the future act are not able to be exercised or enjoyed.
Part 7
Is compensation payable for the doing of the future act?
Compensation for the effect of the future act on native title rights and interests is payable
under this section if there is a successful claim for compensation. Compensation is payable
by the State where the act is attributable to the State.
Part 8
Who makes the decision whether this Module applies?
There are no actual delegations to make decisions in relation to native title under the Native
Title Work Procedures, the NTA or the NTQA.
The native title assessment process is just one part of your decision-making process when
making a decision under legislation, eg. a decision to grant a sales permit to cut and remove
timber. By carrying out a native title assessment, you are ensuring your decision complies
with the NTA.
If the decision-maker is unsure how to proceed, your NTCO must be contacted for advice. If
the NTCO is unsure how to proceed, the NTCO must contact Aboriginal and Torres Strait
Islander Land Services for advice.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GE V2
Chapter 5: Future Acts
11
If this Module does not apply to the proposed future act,
please proceed to the next Module.
eg
im
e
The Batting Order
ac
tr
s24KA
Fu
tu
re
s24JA
Module L – Low impact future acts
Module K – Facilities for services to the public
Module J – Reservations and leases
s24JAA Module JAA - Public housing and certain government
infrastructure on Indigenous land
s24HA
s24GE
s24GD
s24FA
s24NA Module M&N – Freehold test
(onshore places), acquisitions,
s24MD
mining, offshore places.
s24LA
s24IA
s24GB
Invalid future acts – see Module O
Modules IB & IC – Pre-existing right-based acts and renewals, etc
Module H – Water, living aquatic resources, airspace
Module GE – Third party rights on non-exclusive pastoral/agricultural leases
Module GD – off-farm activities directly connected to primary production
Module GB – Primary production on non-exclusive pastoral/agricultural leases
Module F – Section 24FA protection – non-claimant applications
Registered Indigenous land use agreements (see Module AC)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module GE V2
Chapter 5: Future Acts
12
Department of Natural Resources and Mines
Module H
Management or Regulation of Surface and
Subterranean Water, Living Aquatic Resources and
Airspace
Date: 8 October 2015
Queensland
Government
Module H
Section 24HA: Management or Regulation of Surface and
Subterranean Water, Living Aquatic
Resources and Airspace
DOES THE PROPOSED FUTURE ACT FIT WITHIN THIS MODULE?
This Module will help you assess whether your future act is caught by section
24HA of the NTA.
If your future act falls within section 24HA, then your future act is either –
1. the making, amending or repealing of legislation that relates to the
management or regulation of surface or subterranean water, living aquatic
resources or airspace – section 24HA(1); OR
2. the grant of a new permit, lease, licence or authority that is granted under
legislation that relates to the management or regulation of surface or
subterranean water, living aquatic resources or airspace – section 24HA(2).
Both sub-sections need to be considered, ie. if the proposed future act does not
fit within section 24HA(1) then you need to consider whether the proposed future
act fits within section 24HA(2).
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module H V2
Chapter 5: Future Acts
2
TABLE OF CONTENTS
Part 1
What is section 24HA? ..................................................................................................... 4
A. Legislative Acts
Part 2
Is my proposed future act the making, amending or repealing
of legislation – section 24HA(1)? ........................................................................................................................... 5
B. Granting Leases, Licences, Permits or Authorities
Part 3
Is my proposed future act the grant of a permit, lease, licence
or authority - section 24HA(2)? ........................................................................................................................... 7
C. Defining Management or Regulation of Water, Living Aquatic Resources or Airspace
Part 4
What is management or regulation? ................................................................................ 9
Part 5
What is water? ................................................................................................................. 9
Part 6
What is living aquatic resources? .................................................................................. 10
Part 7
What is airspace? ........................................................................................................... 11
D. Effect on native title, Compensation and Decision-Making
Part 8
Does the non-extinguishment principle apply? .............................................................. 12
Part 9
Is compensation payable for the doing of the future act? .............................................. 12
Part 10
Who makes the decision whether this module applies? ............................................. 12
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module H V2
Chapter 5: Future Acts
3
Part 1
What is section 24HA?
Section 24HA focuses on future acts that involve legislation that relates to the management or
regulation of –

surface and subterranean water;

living aquatic resources; and

airspace.
Your future act is caught by section 24HA, if it is either –
1. the making, amending or repealing of legislation that relates to the management or regulation
of surface or subterranean water, living aquatic resources or airspace - s24HA(1);
OR
2. the grant of a new permit, lease, licence or authority that is granted under legislation that
relates to the management or regulation of surface or subterranean water, living aquatic
resources or airspace - s24HA(2).
IMPORTANT
If your future act is the renewal, regrant, remake or extension of the term of a valid permit,
lease, licence or authority that was originally granted 
on or before 23 December 1996; OR

after 23 December 1996 and before 30 September 1998 and would have been caught by
section 24HA (if section 24HA had been included in the original NTA) 1; OR

under s24HA of the NTA,
then it may be able to be renewed, regranted, remade or the term extended under section 24IC of
the NTA. However, you must satisfy all the requirements set down in Module IC of this
Chapter before proceeding with the proposed future act. Proceed to Module IC.
1
Under the transitional provisions of the NTA, future acts that would have fallen within section 24HA but took place
between 23.12.96 and 30.9.98, are considered to have been done under s24HA (as if s24HA was included in the original
NTA) provided they were considered permissible future acts under the original NTA.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module H V2
Chapter 5: Future Acts
4
This Module is divided into the following divisions –
A. Legislative Acts
B. Granting Leases, Licences, Permits or Authorities
C. Defining Management or Regulation of Water, Living Aquatic Resources or Airspace
D. Effect on native title, Compensation and Decision-Making
A. Legislative Acts
Part 2 Is my proposed future act the making, amending or repealing
of legislation – section 24HA(1)?
For your future act to be a Legislative Act under section 24HA(1) it must be –
Please refer to
the
accompanying
flowchart.
1. the making or amending or repealing of legislation
Legislation
The term “legislation” includes the following –

Acts, eg. Fisheries Act 1994; and

Subordinate Legislation, ie. Regulations, statutory instruments. For example, the Marine
Parks Regulation 2006 made under the empowering Act, ie. Marine Parks Act 2004.
1. making of legislation – the enactment of a Bill as an Act OR the making by the Governor in
Council of subordinate legislation.
2. amending of legislation - changes are made to existing legislation by the enactment of an
amending Bill OR the amending by the Governor in Council of subordinate legislation.
3. repealing of legislation - existing legislation ceases to have effect.
Example of making legislation that relates to…
The making of new water legislation such as the Water Act 2000. The Water Act 2000 is
legislation that relates to the management or regulation of water.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module H V2
Chapter 5: Future Acts
5
AND
2. legislation that relates to the management or regulation of 
surface or subterranean water – Refer to Parts 4 and 5;

living aquatic resources - Refer to Parts 4 and 6; or

airspace - Refer to Parts 4 and 7.
IMPORTANT
The use of the expression relates to in the point above does not mean that the legislation must
state that it is about the management or regulation of water, living aquatic resources or airspace.
If the effect of the legislation is the management or regulation of water, living aquatic resources or
airspace, then the legislation relates to the management or regulation of water, living aquatic
resources or airspace.
Examples

For an example of where the legislation states that it is about the management of water –
please see the Marine Parks Regulation 2006 example below.

For an example of where the legislation is in effect about the management of water – please
see the Land Act 1994 example below.
If your future act, satisfies ALL of the above criteria then it is a legislative act under section
24HA(1) of the NTA and will be valid in relation to native title. There are no procedural rights that
must be provided to the native title parties. You should now complete your Native Title
Assessment Form.
If your future act does not satisfy ALL of the above criteria you must
consider whether your future act is caught by section 24HA(2).
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module H V2
Chapter 5: Future Acts
6
B. Granting Leases, Licences, Permits or
Authorities
Part 3 Is my proposed future act the grant of a permit, lease, licence
or authority - section 24HA(2)?
For your future act to be caught by section 24HA(2) it must be –
Please refer to
the
accompanying
flowchart.
1. the grant of a permit, lease, licence or authority;
IMPORTANT
The use of the word “grant” means that you must be granting a new interest to the applicant. For
example, the grant of a fishing licence to an applicant that has never held a fishing licence, is the
grant of a new interest. In contrast, amending a fishing licence to restrict the area in which the
permit holder can fish, is not the grant of a new interest as it does not create additional rights and
is simply an amendment of the terms. Such an amendment would not constitute a future act.
AND
2. done under legislation that relates to the management or regulation of
surface or subterranean water – Refer to Parts 4 and 5-;

living aquatic resources - Refer to Parts 4 and 6; or

airspace - Refer to Parts 4 and 7.
IMPORTANT
The use of the expression relates to in the point above does not mean that the legislation must
state that it is about the management or regulation of water, living aquatic resources or airspace.
If the effect of the legislation is the management or regulation of water, living aquatic resources or
airspace, then the legislation relates to the management or regulation of water, living aquatic
resources or airspace.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module H V2
Chapter 5: Future Acts
7
Examples

For an example of where the legislation states that it is about the management of water –
please see the Marine Parks Regulation 2006 example below.

For an example of where the legislation is in effect about the management of water – please
see the Land Act 1994 example below.
Example of a grant of a permit under legislation that relates to…
The grant of a permit to allow a tourist program in the waters of the marine park (eg. snorkelling,
fish feeding, glass-bottom boat viewing, whale watching, etc), under the Marine Parks Regulation
2006.
Reasoning
The Marine Parks Act 2004 and the Marine Parks Regulation 2006 (made under that Act) are
legislation that relate to the setting apart of tidal lands and waters as marine parks and the
management of those areas. The grant of a marine park permit for a tourist program within the
waters of the marine park, is in effect granting access to the water of the marine park. Therefore,
the permit is caught by s24HA(2).
If your future act, satisfies ALL of the above criteria then it may proceed under section
24HA(2) of the NTA and will be valid in relation to native title.
You will now need to take the following steps –
1. Complete your Native Title Assessment Form – Annexure 7.1.
2. Provide a notification and an opportunity to comment to the relevant native title parties, in
accordance with Annexure 7.2 and Annexure 7.3.
If your future act does not satisfy ALL of the above criteria you must
consider whether your future act is caught by Module IB.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module H V2
Chapter 5: Future Acts
8
C. Defining Management or Regulation of Water,
Living Aquatic Resources and Airspace
Part 4
What is management or regulation?
The Macquarie Dictionary defines –

management as the act or manner of managing; handling, direction or control. “Manage” is
defined as including to take charge or care of and to handle, direct, govern or control in action
or use;

regulation as a rule or order, as for conduct, prescribed by authority; a governing direction or
law; the act of regulating. “Regulate” is defined as including to control or direct by rule,
principle or method; to adjust to some standard or requirement.
Example
The Water Act 2000 is legislation that relates to the management or regulation of water. For
example, one of its purposes is to advance sustainable management and efficient use of water
and other resources by establishing a system for the planning, allocation and use of water.
Another of its purposes is to provide for a regulatory framework to provide water in Queensland.
Therefore, the Water Act 2000 is controlling and directing how the State’s water resources should
be used.
Part 5
What is water?
Water means water in all its forms –

liquid;

ice; and

steam.2
The water can either be –

surface water, ie. water on the earth’s surface such as rivers, sea, ocean, lakes, streams,
creeks; or
2
Explanatory Memorandum to the NTA, p. 117
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module H V2
Chapter 5: Future Acts
9

subterranean water, ie. water existing below the surface of the earth such as bore water,
artesian water.
Management or Regulation of Water
Legislation relating to the management or regulation of water is legislation that directs and/
controls the use of water.
Section 24HA also states that the management or regulation of water includes granting access
to water or taking water.
Example – taking water
The Water Act 2000 is legislation that relates to the management of water. A permit may be
granted under the Water Act 2000 that authorises the taking of water from a watercourse.
Therefore, this permit is caught by section 24HA(2).
Examples – access to water
The Land Act 1994 is in part legislation that relates to the management or regulation of water in
that it covers the management of non-freehold land, which includes land below the high water
mark. For example, a lease over land below the high water mark granted under the Land Act
1994 in effect grants access to the water covered by the lease area and therefore is caught by
section 24HA(2).
The Sustainable Planning Act 2009 is legislation that relates in part to the management or
regulation of water in that it covers tidal works. For example, to carry out tidal works, e.g. a wharf,
below the high water mark in a navigable river, a development approval is required to be granted
which in effect permits access to water and therefore falls within section 24HA(2).
Part 6
What is living aquatic resources?
The term living aquatic resources includes fish, marine mammals, shellfish, coral, aquatic
plants, etc.3 Aquatic plants could include seagrasses, algae and mangroves.
As the term “living” is used, the grant of a permit to allow the processing or selling of fish that
have already been caught and killed, for example, is not captured by this term.
3
Explanatory Memorandum to the NTA, p. 117
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module H V2
Chapter 5: Future Acts
10
Management or Regulation of Living Aquatic Resources
Legislation relating to the management or regulation of living aquatic resources is legislation that
directs and/ controls the use of living aquatic resources.
Example
The Fisheries Act 1994 is legislation relating to the management of living aquatic resources in that
it covers the management of fisheries resources, fish habitats and aquaculture activities. For
example, a licence granted under the Fisheries Act 1994 for commercial fishing will be caught by
section 24HA(2).
Part 7
What is airspace?
The Explanatory Memorandum to the NTA describes airspace as –

having its ordinary meaning;

as the atmosphere above the land or waters of Queensland; and

the air available for aircraft to fly in.4
As the definition of airspace is very broad, it can be difficult to ascertain whether the use of
airspace is actually an act that affects native title, ie. a future act. For the use of airspace to be a
future act it must affect the use or enjoyment of land or water by native title holders/claimants over
which the airspace is located.
Example
The Land Act 1994 is in part, legislation relating to the management or regulation of airspace in
that it covers non-freehold land which includes layers and strata above and below the surface of
the land. For example, the construction of a bridge over a creek, where the footings will be
located outside the creek area and the bridge is fully suspended over the airspace above the
creek, requires a permit to be granted under the Land Act 1994 for the occupation of that
airspace. This permit would be caught by section 24HA(2).
4
Explanatory Memorandum to the NTA, p. 117
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module H V2
Chapter 5: Future Acts
11
D. Effect on Native Title, Compensation and
Decision-making
Part 8
Does the non-extinguishment principle apply?
Yes. The non-extinguishment principle applies to all future acts done under section 24HA.
This means that native title rights and interests affected by the doing of the future act continue to
exist and are not extinguished. However, while the future act exists, those native title rights and
interests have no affect on the future act.
IMPORTANT
As the non-extinguishment principle applies to grants made under section 24HA, a lease with a
view to the freeholding of the lease area cannot be issued.
Part 9
Is compensation payable for the doing of the future act?
Compensation for the effect of the future act on native title rights and interests is payable under
this section if there is a successful determination of native title and a claim for compensation.
Compensation is payable by the State where the act is attributable to the State.
Part 10
Who makes the decision whether this module applies?
There are no actual delegations to make decisions in relation to native title under the Native Title
Work Procedures, the NTA or the NTQA.
The native title assessment process is just one part of your decision-making process when
making your decision under your legislation, eg. a decision to grant a permit. By carrying out a
native title assessment, you are ensuring your decision complies with the NTA.
If the decision-maker is unsure how to proceed, your NTCO must be contacted for advice. If the
NTCO is unsure how to proceed, the NTCO must contact Aboriginal and Torres Strait Islander
Land Services for advice.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module H V2
Chapter 5: Future Acts
12
If this Module does not apply to the proposed future act,
please proceed to the next module.
eg
im
e
The Batting Order
ac
tr
s24KA
Fu
tu
re
s24JA
Module L – Low impact future acts
Module K – Facilities for services to the public
Module J – Reservations and leases
s24JAA Module JAA - Public housing and certain government
infrastructure on Indigenous land
s24HA
s24GE
s24GD
s24FA
s24NA Module M&N – Freehold test
(onshore places), acquisitions,
s24MD
mining, offshore places.
s24LA
s24IA
s24GB
Invalid future acts – see Module O
Modules IB & IC – Pre-existing right-based acts and renewals, etc
Module H – Water, living aquatic resources, airspace
Module GE – Third party rights on non-exclusive pastoral/agricultural leases
Module GD – off-farm activities directly connected to primary production
Module GB – Primary production on non-exclusive pastoral/agricultural leases
Module F – Section 24FA protection – non-claimant applications
Registered Indigenous land use agreements (see Module AC)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module H V2
Chapter 5: Future Acts
13
Department of Natural Resources and Mines
Module IB
Pre-existing right-based acts (“PERBAs”)
Date: 8 October 2015
Queensland
Government
Module IB
Sections 24IB and 24ID Pre-existing right-based acts (“PERBAs”)
DOES THE PROPOSED FUTURE ACT FIT WITHIN THIS MODULE? This Module helps you assess whether your proposed future act is a preexisting right-based act (“PERBA”).
For this Module to apply, your proposed future act must not have fallen
within a preceding Module.
For your future act to be a PERBA it must be based on a legally
enforceable right or a previous offer, commitment, arrangement or
undertaking created on or before 23 December 1996.
If your proposed future act is not a PERBA, then this Module does not
apply. Proceed to Module IC.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IB V2
Chapter 5: Future Acts
2
TABLE OF CONTENTS
Part 1 What is section 24IB? .......................................................................................................... 4 A. Types of PERBA scenarios
Part 2 What is a legally enforceable right PERBA scenario? ......................................................... 5
Part 3 What is a prior offer, commitment, arrangement or undertaking PERBA scenario? ............ 6
B. Next step and procedural rights
Part 4 What is your next step if you think your proposed future act can be done as a PERBA?.... 9
Part 5 What are the procedural rights for doing a PERBA? ............................................................ 9
C. Effect on native title, compensation and decision-making
Part 6 What is the effect on native title rights and interests by the doing of the future act? ......... 10
Part 7 Is compensation payable for the doing of the future act? .................................................. 11
Part 8 Who makes the decision whether this Module applies? .................................................... 11
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IB V2
Chapter 5: Future Acts
3
Part 1
What is section 24IB?
The purpose of section 24IB is to protect a limited class of proposed future acts (called preexisting right based acts or PERBAs) that –

have not yet occurred;
AND

were offered, arranged or committed to etc, on or before 23 December 1996.
Section 24IB allows these acts to now occur and be valid in relation to native title.
Your proposed future act is a PERBA if it takes place –

in exercise of a legally enforceable right created by any act done on or before 23 December
1996 that is valid – section 24IB(a);
OR

in good faith in giving effect to, or otherwise because of, an offer, commitment,
arrangement or undertaking made or given in good faith on or before 23 December 1996,
and of which there is written evidence created at or about the time the offer, commitment,
arrangement or undertaking was made – section 24IB(b).
Example scenario
In March 1996, Kellie Cetroni applied to the Department of Lands for a commercial lease over Lot
1 on SP12896. The department considered the application under the Land Act 1994 and carried
out a native title assessment. The assessment found that a pastoral holding had previously been
granted over the lot. Before the High Court decision in Wik (23 December 1996), it was
considered that a pastoral lease wholly extinguished native title. In June 1996, the department
offered Kellie a grant of a commercial lease subject to payment of the first year’s rent. Kellie
accepted the offer within the time given for acceptance and satisfied all other conditions of the
offer.
However, the lease was not granted for a variety of reasons and Kellie has now requested that the
department grant the lease. As the department cannot now rely upon their previous native title
assessment, the department is doing a new assessment in accordance with the current
Procedures. Can the department proceed to grant the lease as a PERBA?
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IB V2
Chapter 5: Future Acts
4
This Module is set out in the following three divisions –
A. Types of PERBAs
B. Next step and procedural rights
C. Effect on native title, compensation and decision-making.
A. Types of PERBA scenarios
This Division provides you with some information on different types of PERBAs. If after reading
through this division you think that your proposed dealing is a PERBA go to Division B for your
next step.
Part 2
What is a legally enforceable right PERBA scenario?
A legally enforceable right PERBA scenario is one where the proposed dealing can proceed
based upon a right that a person can enforce at law because of a right previously created by an
act, eg. a contract, deed of agreement or legislation.
The legally enforceable right must have been created on or before 23 December 1996.
Examples
 On 17 September 1996, Real Development Pty Ltd signed a contract with the State for a multimillion dollar development project. Annexed to the contract was a conditional written offer by
the State for a development lease over Lot 2 on SP67845 provided the company first
completed design work for the project in accordance with the terms of the contract. By signing
the contract the company accepted the State’s offer of a development lease. Due to numerous
delays the design work has only just been completed and approved.
The company has
requested that the State now grant the development lease. As a valid contract (inclusive of the
written offer) was signed before 23 December 1996, the State can now rely on that contract
and grant the development lease as a PERBA under section 24IB of the NTA.
If the State
refuses to grant the development lease, the company may be able to enforce the contract
against the State or seek damages for breach of the contract. Therefore, the contract provides
the company with a legally enforceable right.
 The Central Queensland Coal Associates Agreement Act 1968 authorised an Agreement
between the State and Utah Development Company. The Agreement was made in 1969 and
has force of law as if it were enacted. Clause 5, Part 8 of the Agreement is a legally
enforceable right in favour of Utah –
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IB V2
Chapter 5: Future Acts
5
Subject to Clauses 2 and 3 of this Part, the State shall, as and when required by the
Companies, in respect of any land situated within the Franchise Lands or the catchment area
referred to in Part VII of this Agreement which, in the opinion of the Minister is reasonably
required for any of the following purposes: (i)
town site or town sites; or
(ii)
cutting and constructing thereon water-races, pipelines, drains, dams, reservoirs,
tramways, railways, haulage ways, roads and other improvements required and to be
used for the purposes of this Agreement; or
(iii)
pumping, raising or obtaining water to be used in connection with mining, treatment
and transportation of coal and/or by-products and for purposes connected directly or
indirectly therewith,
grant to the Companies such Special Lease or Special Leases or other tenure, license or
permit which may be appropriate to the particular purpose, and on such terms and conditions
as the Companies shall be lawfully entitled to, having regard to the purpose for which the said
land is required. The rent under such lease or license or fee under such permit shall be fixed
by the Minister.
Part 3 What is a prior offer, commitment, arrangement or undertaking
PERBA scenario?
A prior offer, commitment, arrangement or undertaking PERBA scenario is one where the
proposed dealing can proceed based upon a prior offer, arrangement or undertaking that was
made on or before 23 December 1996.
In addition, there must –
(a) be written evidence of that offer, commitment, arrangement or undertaking at the time it
was made; and
(b) have been communication of the offer, commitment, arrangement or
undertaking to the relevant person or company.
IMPORTANT
An internal commitment within government is not enough if it was not
communicated at the time to the particular person/body to which the commitment
was made. For example, there is a memo on file approving a dealing but there
was never a letter of offer sent to the applicant.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IB V2
Chapter 5: Future Acts
6
Also, an offer, commitment, arrangement or undertaking made between State government
departments and agencies cannot be treated as a PERBA. This is akin to the State making an
arrangement etc with itself. However, this does not include arrangements etc between the State,
on the one hand, and on the other hand, Government Owned Corporations, statutory authorities
of the Crown, the Commonwealth or with local authorities.
What is an offer?
An offer is an expression by one person, group or agent on their behalf, made to another person,
1
of their willingness to be bound to a contract with that other person on certain terms .
Examples of offers

An owner of a house offers to sell their house to another person for $250 000.

The State makes a written offer to an applicant that it will grant a lease subject to certain
conditions.
What is a commitment?
Dictionary definitions of the term “commitment” include the act of committing, the state of being
committed, that to which one has committed oneself, pledging or engaging oneself. 2 There
should also be some communication between the parties so that each party has an understanding
of the commitment and expectations raised.
Commitments may be of various types, that is, a conditional commitment subject to certain terms
being met, or a firm commitment which is binding without conditions 3.
However, you cannot rely upon a commitment made to the “general community” such as in the
following example, as the commitment must be to a particular person/body.
Example of a commitment to the general community – this is not a PERBA
In 1995, the Premier announced that his Government would set aside a particular area of Crown
land as a national park by July 2009.
What is an arrangement?
An arrangement (or understanding) normally involves communication between the parties
arousing expectations in each that the other will act in a particular way 4.
1
th
Halsbury’s Laws of England (4 ed., vol 9, para 227);
The Macquarie Dictionary (1981, p383);
3
th
Black’s Law Dictionary (6 ed., 1990, p273);
4
Trade Practices Commission v Email Ltd (1980) 31 ALR 53 at 65;
2
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IB V2
Chapter 5: Future Acts
7
An arrangement is something less than a binding contract or agreement, something more in the
nature of an understanding between two or more persons – a plan arranged between them which
may not be enforceable at law 5.
Example of an arrangement
A national park adjoins a pastoral lease. The then Environmental Protection Agency (EPA) had
identified that there are rare native plant species on part of the pastoral lease. In November 1995,
the EPA approached the lessee about a land swap proposing that part of the pastoral lease where
the rare plant species were located be included into the National Park in return for an adjoining
area of National Park. The lessee was generally agreeable to this proposal subject to the survey
and registration of the new boundaries, etc. The EPA confirmed their proposal and discussion
with the lessee by way of letter in November to which the lessee responded to in writing
confirming he was agreeable to the proposal and would like to commence the process.
What is an undertaking?
6
An undertaking can be described as a promise, pledge or guarantee .
Example of an undertaking
The then Department of Main Roads (“DMR”) needed to widen the highway adjoining Mr Fred
Wu’s
property which is situated on a corner block. In April 1996, DMR approached Mr Wu seeking his
agreement to the taking of a 5 metre strip of his property. Mr Wu did not mind the 5 metre strip
being taken as he had a large property and happily agreed to the proposal. However, Mr Wu is
concerned about his children’s safety and has requested DMR to reconstruct the fence along the
new boundary. DMR promises to reconstruct Mr Wu’s fence.
What is written evidence?
There must be written evidence created at or about the time the offer, commitment, arrangement
or undertaking was made. This written evidence could include (and be a combination of) 
letters by the relevant department, eg. a letter of offer;

contracts or agreements;

memorandums of understanding;

legislation;

actions (captured in writing) including expenditure taken by the relevant department in order to
give effect to an offer, etc;
5
6
Newton v Federal Commissioner of Taxation (1958) 98 CLR 1 at 7;
Macquarie Dictionary (p1885);
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IB V2
Chapter 5: Future Acts
8

aerial photographs with overlays on photo;

reports to Parliament, Cabinet Submissions and Decisions;

maps, plans and planning documents;

telephone attendances.
Examples of timing of written evidence
An offer made by letter to an applicant is written evidence created at or about the time the offer
was made.
However, a statutory declaration written today by an officer declaring that there was an earlier
offer by the State is not written evidence created at or about the time the offer was made.
B. Next step and procedural rights
Part 4 What is your next step if you think your proposed future act
can be done as a PERBA?
If you have read through this Module and are of the view that your proposed future act can be
done as a PERBA, provide your native title assessment form (Annexure 7.1) and all relevant
written evidence to Aboriginal and Torres Strait Islander Land Services through your NTCO.
Aboriginal and Torres Strait Islander Land Services will consider whether your proposed future act
meets the requirements of section 24IB of the NTA. Advice will be forwarded to you through your
NTCO.
If your future act is not a PERBA consider whether your future act falls within
Module IC. Proceed to Module IC.
Part 5 What are the procedural rights for doing a PERBA?
If Aboriginal and Torres Strait Islander Land Services advises that your proposed future act can
proceed under this Module then the procedural rights (if any) to be provided to the relevant native
title parties are set out in the table below.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IB V2
Chapter 5: Future Acts
9
NATURE OF THE PERBA
PROCEDURAL RIGHTS
Grant of a freehold estate
Notification and opportunity to comment
(see Annexure 7.2 and Annexure 7.3)
Conferral of a right of exclusive possession
over particular land or waters (eg. certain
leases)
Notification and opportunity to comment
(see Annexure 7.2 and Annexure 7.3)
Any future act not covered by the above
No procedural rights
C. Effect on native title, compensation and
decision-making
Part 6 What is the effect on native title rights and interests by the
doing of the future act?
The following table summarises the effect on native title rights and interests of a future act that is
a PERBA.
NATURE OF THE PERBA
EFFECT ON NATIVE TITLE RIGHTS AND
INTERESTS
Grant of a freehold estate
Extinguishment
Conferral of a right of exclusive possession over
particular land or waters
Extinguishment
Any future act not covered by the above
Non-extinguishment principle
Extinguishment of native title means that native title is permanently gone, ie. it can not be revived.
Extinguishment occurs by acts conferring exclusive possession. These are acts which are
considered to be totally inconsistent with the exercise of any native title rights and interests in
relation to a particular area covered by the act.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IB V2
Chapter 5: Future Acts
10
If the non-extinguishment principle applies, native title rights and interests affected by the doing of
the future act continue to exist and are not extinguished. However, while the future act exists,
those native title rights and interests inconsistent with the future act are not able to be exercised
or enjoyed.
Part 7
Is compensation payable for the doing of the future act?
Compensation for the effect of the future act on native title rights and interests is payable under
this section if there is a successful claim for compensation. Compensation is payable by the State
where the act is attributable to the State.
Part 8
Who makes the decision whether this Module applies?
Because the question of whether or not a legally enforceable right, or an offer, commitment,
arrangement or undertaking may exist can be difficult to determine, departmental and agency
officers must refer the matter to Aboriginal and Torres Strait Islander Land Services through their
NTCO.
If this Module does not apply to the proposed future act,
please proceed to the next Module.
eg
im
e
The Batting Order
ac
tr
s24KA
Fu
tu
re
s24JA
Module L – Low impact future acts
Module K – Facilities for services to the public
Module J – Reservations and leases
s24JAA Module JAA - Public housing and certain government
infrastructure on Indigenous land
s24HA
s24GE
s24GD
s24FA
s24NA Module M&N – Freehold test
(onshore places), acquisitions,
s24MD
mining, offshore places.
s24LA
s24IA
s24GB
Invalid future acts – see Module O
Modules IB & IC – Pre-existing right-based acts and renewals, etc
Module H – Water, living aquatic resources, airspace
Module GE – Third party rights on non-exclusive pastoral/agricultural leases
Module GD – off-farm activities directly connected to primary production
Module GB – Primary production on non-exclusive pastoral/agricultural leases
Module F – Section 24FA protection – non-claimant applications
Registered Indigenous land use agreements (see Module AC)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IB V2
Chapter 5: Future Acts
11
Department of Natural Resources and Mines
Module IC
Renewals, regrants, extensions of the term of a lease,
licence, permit or authority
Date: 8 October 2015
Queensland
Government
Module IC
Sections 24IC and 24ID
Renewals, regrants, extensions of the term of a lease,
licence, permit or authority
DOES THE PROPOSED FUTURE ACT FIT WITHIN THIS MODULE? This Module applies if your proposed future act is a renewal,
regrant or extension of the term of a valid lease, licence, permit or
authority.
For this Module to apply, your proposed future act must not fall
within a preceding Module.
If your proposed future act is not a renewal, regrant or extension
of the term of a valid lease, licence, permit or authority then
proceed to Module J.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
2
TABLE OF CONTENTS
Part 1 What is section 24IC? ......................................................................................................... 4
A.
Requirements for the renewal, regrant or extension of the term of a lease, licence,
permit or authority
Part 2 Categorising your proposed future act ............................................................................... 5
Part 3 What are the requirements that must be satisfied for the renewal, regrant or extension of the term of a lease, licence, permit or authority? ............................................................... 7
B.
Is your proposed future act a renewal, regrant or extension of the term?
Part 4 Test for whether your proposed future act is a renewal, regrant or extension of the
term……………................................................................................................................. 15
C.
Effect on native title, compensation and decision-making
Part 5 Does the non-extinguishment principle apply?................................................................. 18
Part 6 Is compensation payable for the doing of the future act? ................................................ 18
Part 7 Who makes the decision whether this module applies?................................................... 19
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
3
Part 1
What is section 24IC?
Section 24IC applies to future acts that are the renewal, regrant or extension of the term of a valid
lease, licence, permit or authority.
Your proposed future act is caught by section 24IC if it is either –
1. a renewal;
2. a regrant; or
3. an extension of the term,
of a valid lease, licence, permit or authority. The ability to use this Module wholly depends upon whether the relevant State
legislation allows the lease, licence, permit or authority to be renewed or
regranted or its term extended.
Examples
1. Section 156 of the Transport Operations (Marine Safety) Regulation 2004 allows an authority
(eg. a buoy mooring authority) to be renewed.
2. Section 57 of the Fisheries Act 1994 provides that a permit cannot be renewed, but that the
holder may apply for the issue of another permit. In this case, section 24IC would not apply as
the legislation specifically excludes permit renewals. Therefore, the future act is the grant of a
new fisheries permit, not its renewal, and you would need to go back and consider Module H.
3. There is no power under the Land Act 1994 to renew a permit to occupy but there is a power
to renew a term lease provided the renewal application is made after 80% of the term has run
(section 158) and the renewal occurs before expiry of the current lease (section 157).
Where the lease, licence, permit or authority has expired, been cancelled or surrendered then
this ordinarily prevents a renewal, regrant or extension of the term, unless the legislation
specifically provides otherwise as shown in the following examples –
Examples
1. Section 56(2) of the Fisheries Act 1994, provides that an authority can be renewed if an
application is made within three months after its expiry.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
4
2. Section 50 of the Marine Park Regulation 2006 provides that a permit shall remain in force
past its expiry date (until a decision is made on a new permit) where the permittee applies for
a new permit (of the same kind, in the same area) before the expiry of the old one. In this
case, if a new permit is issued, it will be a regrant of the permit.
This Module is divided into the following divisions –
A. Requirements for a renewal, regrant or extension of the term of a lease, licence, permit or
authority.
B. Is your proposed future act a renewal, regrant or extension of the term?
C. Effect on native title, compensation and decision-making.
A. Requirements for a renewal, regrant or
extension of the term of a lease, licence,
permit or authority
Part 2
Categorising your proposed future act
In order to apply this Module you need to “categorise” your proposed future act. Are you
renewing, regranting or extending the term of -
Category
1
Description
A non-exclusive pastoral/agricultural lease?
Examples
 pastoral holding
 term lease for grazing purposes
2
A mining interest?
Examples

a mining lease

a petroleum lease

authority to prospect for petroleum and gas
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
5
Category
Description

a prospecting permit

a mining claim

an exploration permit

a mineral development licence

a sales permit which allows the getting of quarry materials (where
the quarrying goes beyond the natural surface of the land)1
3
A non-exclusive lease that neither falls into Category 1 or Category
2?
Examples

a lease that would otherwise be a PEPA but for a special condition
that stops you assessing it as a PEPA, eg. the lessee can use the
lease for grazing purposes only
 a lease that you have assessed as not a PEPA
4
A licence, authority or permit?
Examples
 buoy mooring authority
 occupation licence
 marine park permit
 sales permit for harvesting trees
Having now categorised your proposed future act, check the table below to see which
requirements in Part 3 you must satisfy so that your renewal, regrant or extension of the term can
proceed under this Module.
You must satisfy ALL of the below requirements that are ticked for your
particular category.
1
See definition of “mine” in section 253 of the NTA.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
6
Requirements
Category 1
Category 2
Category 3
Category 4
1




2



in Part 3

3
4




5




6



7

8




9



Part 3 What are the requirements that must be satisfied for the
renewal, regrant or extension of the term of a lease, licence,
permit or authority?
Requirement 1 The proposed future act is the renewal, regrant or extension of the term of a lease, licence,
permit or authority. Refer to Division B for the rules as to when your proposed future act is a renewal, regrant or
extension of the term.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
7
Requirement 2 The lease, licence, permit or authority must meet one of the following conditions – This is the lease, licence, permit or authority you now wish to renew, regrant or
extend the term.
(a) it was granted on or before 23 December 1996;
OR
(b) it was a pre-existing right-based act (“PERBA”) under section 24IB of the NTA
(including because of the transitional provisions2). Refer to Module IB;
OR
(c) it is itself a renewal, regrant or extension of the term which proceeded under section
24IC (including because of the transitional provisions)3;
Example
A lease was granted in 1990. In 2000, the department renewed it for a term of 5 years.
This renewal proceeded in relation to native title under section 24IC of the NTA. In this
case the renewal then fell within Requirement 2(a) above as the lease being renewed
was granted before 23 December 1996.
The lessee has now applied for another 5 year renewal. In this case, the renewal falls
under Requirement 2(c) and not 2(a), as the lease the department now wishes to renew
was itself a renewal under section 24IC of the NTA.
OR
(d) the lease, licence, permit or authority was created by an act covered by sections 24GB,
24GD, 24GE or 24HA. This means that the lease, licence, permit or authority was
either–
(i)
granted on or after 30 September 1998 AND sections 24GB, 24GD, 24GE or
24HA applied to the grant of the lease, licence, permit or authority;
2
3
See footnote 4.
See footnote 4.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
8
Example
A lease below the high water mark was granted under section 15(2) of the
Land Act 1994 on 30 January 2000 after notification and an opportunity to
comment was provided to the native title parties under section 24HA. The
renewal of that lease can proceed under this Module as section 24HA
applied to the lease being renewed.
OR
(ii)
granted after 23 December 1996 and before 30 September 1998 AND would
have fallen within sections 24GB, 24GD, 24GE or 24HA if those sections had
formed part of the original NTA.
4
Example
A water licence to take water from Emu Creek was granted on 20 January
1997, which was associated with an aquacultural activity on the adjoining
agricultural lease. It was granted during the time the original NTA operated.
If granted now, the permit would have fallen within the current section 24GD
of the amended NTA and therefore is considered to be an act covered by
section 24GD. The renewal of this licence can proceed under this Module.
Requirement 3 The earlier right to mine was created on or before 23 December 1996. Earlier right to mine
The “earlier right to mine” means the original grant, ie. the first grant, of the
right to mine. For example –
(a)
a mining lease was granted in 1974 and was renewed in 2004 for 30 years in
accordance with section 24IC of the NTA. When it is due to be renewed in 2034, the
“earlier right to mine” for the purpose of this requirement is the 1974 grant;
(b)
a sales permit for quarrying was granted in 1994 for five years after the right to
negotiate process had been complied with. Each time its term is extended (eg. in 2001
it was extended for a further five years, and in 2006 it was extended another five years),
the “earlier right to mine” for the purpose of this requirement is the 1994 grant.
4
This is the time period for which the transitional provisions of the amended NTA applies. The transitional provisions
(Table A – Schedule 5, Part 2, section 3) provide that the original NTA applies to future acts that took place after 23
December 1996 but before 30 September 1998 as if 
subdivisions G to K of the NTA (disregarding paragraph 24GE(1)(f)), and any related provisions of the NTA,
were included in the original NTA; and
acts to which those Subdivisions apply were permissible future acts.

The original NTA is the NTA that commenced on 1 January 1994 and before it was amended on 30 September 1998.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
9
If the right to mine you wish to renew, regrant or extend was first granted
after 23 December 1996, then this Module does not apply. Unless Modules
J, K or L apply, your proposed dealing will fall within Module M.
Requirement 4
The lease, licence, permit or authority (that you are renewing, regranting or extending the term) is
valid.
“valid”
The lease, licence, permit or authority must be valid under State legislation and in relation to
native title.
Valid under State legislation
It will not be valid under State legislation if there was no power under legislation to grant it.5
Valid in relation to native title
In relation to whether it is valid in relation to native title, consider the following timeline. It is
based upon the date it was created (ie. the date of grant and for Requirement 2(c) the date of
renewal, regrant or extension of the term).
1.1.1994
VALID
23.12.1996
VALID if the whole or part of the
area covered by the lease,
licence, permit or authority was
subject to, at any point in time
prior to 1.1.94 –
 a valid freehold estate;
 a valid lease (other than
a mining lease); or
 a valid public work
OR the right to negotiate process
under the original NTA was
complied with.
VALID if section
24GB, GD, GE, HA, IB
or IC (including
because of the
transitional provisions
(see footnote 3)) were
complied with for the
creation of the lease,
licence, permit or
authority.
Requirement 5 The proposed dealing area must be an area that is or was covered by the lease, licence, permit or authority. 5
However, an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and
of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate an act that
fails to comply with the condition – McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian
Broadcasting Authority (1998) 194 CLR 355 at [91]cited in Neowarra v State of Western Australia [2003] FCA 1402 at
[436].
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
10
The proposed dealing area can be smaller than the area covered by the lease,
licence, permit or authority PROVIDED the proposed dealing area is within the
‘boundaries’ of the lease, licence, permit or authority.
This Module does not allow the amalgamation/consolidation of two or more
leases, licences, permits or authorities by granting one lease, licence, permit or
authority over the same or smaller area.
Requirement 6
The renewal, regrant or extension of the term does NOT create a greater proprietary interest in
the land/waters than the interest created by the lease, licence, permit or authority you wish to
renew, regrant or extend.
What is a proprietary interest?
A proprietary interest is a right of control over property. This may include the right of ownership
and/or possession. For example, if you are the owner of land you have a proprietary interest in
that land as you control what happens on that land. A lessee may have certain proprietary
interests as they have a right of possession over the property and control to an extent what
occurs on that property in accordance with their lease. Thus, the lessee has a lesser proprietary
interest than an owner of land.
A proprietary interest can be contrasted with a right to use an area. The holder of a fishing
licence does not have the right to control or exclude others from the area where he/she is fishing,
ie. the permit holder does not have a proprietary interest but only a right to use a specified area to
take particular fish. A person who buys a ticket for the bus has the right to use a seat on that
bus but does not have a right of possession or ownership over that seat.
Examples
(a) The conferral of a right of exclusive possession, ie. possession against the rights of all others,
where there was no right of exclusive possession before, creates a greater proprietary interest.
(b) If the term of the proposed lease, licence, permit or authority is greater than the term of the
lease, licence, permit or authority you wish to renew, regrant or extend, there is no greater
proprietary interest created.
(c) The regrant of a lease as two or more separate leases does not create a greater proprietary
interest.
(d) The renewal of a mining lease permitting the mining of an additional mineral (where not
permitted under the original lease) would create a greater proprietary interest.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
11
(e) There is no greater proprietary interest created, if the renewal of a non-exclusive pastoral or
agricultural lease permits the addition of a primary production activity or activity associated with
or incidental to a primary production activity (provided the majority of the lease is being used for
primary production activities) (see Module GB for definitions and examples).
Requirement 7
IF the lease you wish to renew, regrant or extend –
(i)
is a non-exclusive pastoral lease; and
(ii)
covers an area greater than 5000 hectares of which the majority must be or have been
used for pastoral purposes,
the renewal, regrant or extension must NOT have the effect that the majority of the lease area is
to be used for non-pastoral purposes.
Requirement 8
If the lease, licence, permit or authority you wish to renew, regrant or extend contained a
reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders, that
reservation or condition must be repeated in the renewal, regrant or extension.
Requirement 9
If the lease, licence, permit or authority you wish to renew, regrant or extend did NOT permit
mining, the renewal, regrant or extension must also NOT permit mining.
Step 1 Have you satisfied all the requirements for your category of proposed future act?
IF YES, go to Step 2 for the procedural rights (if any) that apply. IF NO, you must consider whether your proposed future act falls within Module J. Proceed to Module J.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
12
Step 2
The following table sets out the procedural rights (if any) that apply to each category.
Category
1
Subcategory
Procedural rights
Actions
(a) The term of
Option 1 - The section 24MD(6B) process applies.
You will need
the lease is
The process is as follows-
to provide all
being extended
(ie. it is longer
than the
preceding term)
The required notification is given by the State to:

any native title representative body in the area;

all
or the new term
is perpetual
details to
Notification
registered
native
title
bodies
corporate
(“RNTBC”); and

all registered native title claimants (“RNTC).
Aboriginal and
Torres Strait
Islander Land
Services
through your
NTCO.
Objection period
Any RNTBC or RNTC has 2 months to object to the
Remember to
doing of the act in so far as it affects their interests.
first enter a
Consultation
research
The State must then consult with all objectors in order
boundary and
to try to minimise the impact of the act on native title
any relevant
and access to the land or waters concerned.
research items
into QNTIME
Hearing by an independent body – Land Court
The objector can require the objection be determined
(Annexure
7.11)
by the Land Court. The Court’s determination can only
be disregarded if 
the State Minister who has responsibility for
Indigenous Affairs is consulted and that Minister’s
views are taken into account; and

it is in the interest of the State not to comply with
the determination.
Option 2 - If you do not wish to proceed under Module
Read Module
IC, you could consider the options of a registered ILUA
Q and Module
(Module Q) or the making of a non-claimant
R.
application (Module R).
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
13
Category
Subcategory
(b) If (a) does
Procedural rights
No procedural rights
not apply
Actions
Complete your
native title
assessment
form and
proceed with
the dealing
under Module
IC.
2
(a) The term of
Option 1 - The right to negotiate process applies –
You will need
the proposed
Proceed to Module P.
to provide all
right to mine is
longer than the
term of the
earlier right to
mine
AND / OR
details to
Aboriginal and
IMPORTANT
A change in the quantity allowed to be taken from the
area covered by the earlier right to mine may constitute
a new right depending upon the wording of the relevant
term in the earlier right to mine.
created in
connection with
the proposed
right to mine
Islander Land
Services
through your
NTCO.
additional
rights are
Torres Strait
For example, if a sales permit for quarrying stated a
maximum or exact quantity (eg.10 000 cubic metres
within the 12 month term), then a new right would be
created if the quantity was increased for the extension
(eg.20 000 cubic metres within the extended 12 month
Remember to
first enter a
research
boundary and
that were not
term). In contrast, if the earlier right to mine only
any relevant
created in
stated a minimum quantity, then no new right would be
research items
connection with
the earlier right
created if the quantity allowed to be taken was
increased for its extension or renewal.
to mine
into QNTIME
(Annexure
7.11)
Option 2 - If you do not wish to proceed under Module
IC, you could consider the options of a registered ILUA
(Module Q) or the making of a non-claimant
Read Module
application (Module R).
Q and Module
R.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
14
Category
Subcategory
(b) If (a) does
Procedural rights
No procedural rights
not apply
Actions
Complete your
native title
assessment
form and
proceed with
the dealing
under Module
IC.
3
Not applicable
No procedural rights
Complete your
native title
assessment
form and
proceed with
the dealing
under Module
IC.
4
Not applicable
No procedural rights
Complete your
native title
assessment
form and
proceed with
the dealing
under Module
IC.
B. Is your proposed future act a renewal, regrant
or extension of the term?
Part 4 Test for whether your proposed future act is a renewal, regrant
or extension of the term
The test for whether your proposed future act is a renewal, regrant or extension of the term is –
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
15
Does the relevant State legislation specifically provide that
the lease, licence, permit or authority can be renewed,
regranted or the term extended?
IF NO, you have NOT satisfied Requirement 1 of Part 3 of this Module.
Example
Section 57 of the Fisheries Act 1994 provides that a permit cannot be renewed, but that the
holder may apply for the issue of another permit. In this case, the proposed future act is the
grant of a new permit and not its renewal.
IF YES and there will be NO gap in time between the expiry/surrender/cancellation of the
lease, licence, permit or authority and its renewal, regrant or extension of the term, you have
satisfied Requirement 1 of Part 3 of this Module.
Examples
 A pastoral lease was granted to Harold Holiday in 1964 for a term of 40 years. In April 2004,
Harold applied, under section 158 of the Land Act 1994, for the renewal of the lease. Harold
knew that if the lease was not renewed before it expired, his right to possession of the land
would end on the day the lease expires. On 24 September 2004, before the lease was due to
expire, the lease was renewed.
 The cancelling of a licence to replace it with the same (but new) interest. For example, where
new legislation cancels licences and replaces them automatically with the equivalent licence
under the new legislation. In this case, Requirement 1 of Part 3 of this Module is satisfied as
this action constitutes a regrant.
IF YES and there will be a gap in time between the expiry/surrender/cancellation of the
lease, licence, permit or authority and its renewal, regrant or extension of the term, you need to
consider whether the State legislation allows for a gap in time  If the State legislation does NOT ALLOW a gap in time or is SILENT on whether a gap in
time is allowed, then this Module does NOT apply.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
16
Example – no gap in time allowed
The Land Act 1994 provides that –
(a) unless a lease is renewed before it expires, the right of the lessee to possession of
the land ends on the day the lease expires (section 157); and
(b) if it appears the lease will expire before a renewal application has been finalised, the
Minister may extend the term of the lease (ie. the current lease) for periods of no longer
than one year until the application is finalised (section 164). N.B. The extension may be
able to proceed under Module IC.
Examples – silent on whether a gap in time is allowed
Section 156 of the Transport Operations (Marine Safety) Regulation 2004 allows an
authority (eg. a buoy mooring authority) to be renewed but is silent when that renewal
must take place.
Under section 35 of the Forestry Act 1959, the Chief Executive may from time to time
extend the term of a stock grazing permit which has been fixed for a term of less than
seven years, as long as the fixed term and the extended terms do not exceed seven
years.
 If the State legislation ALLOWS a gap in time, then you have satisfied Requirement 1 of
Part 3 of this Module.
Examples - gap in time allowed
Section 56(2) of the Fisheries Act 1994 provides that an authority (other than a permit)
can be renewed if an application is made within 3 months after its expiry.
The Minister is able to cancel a licence or permit or forfeit a lease for non-payment of rent
under sections 196 and 234 of the Land Act 1994. However, the Minister is subsequently
able to reinstate (regrant) the cancelled licence or permit or forfeited lease if all the rent is
paid or there was a reasonable excuse for the non-payment of the rent under sections
198 and 237 of the Land Act 1994.
Parties
The applicant for the renewal, regrant or extension of the term will need
to be the lessee, licensee, permittee or holder of the authority of the lease,
licence, permit or authority to be renewed, regranted or term extended.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
17
Conditions
The conditions of the renewal, regrant or extension of the term (“the new grant”) do not
necessarily need to be exactly the same as under the lease, licence, permit or authority you wish
to renew, regrant or extend. For example –

the amount charged for rent may be different under the new grant;

the new grant may be over a smaller area (but not a larger area); or

the new grant may be for a longer term.
Purpose
The general purpose of the grant must stay the same, ie. if the lease you wish to renew is a
lease for pastoral purposes then the new grant cannot be a lease for residential purposes.
Example
A pastoral lease was granted to Harold Holiday in 1961 for a term of 40 years. In 1953, the lease
was transferred to Giovani Foresta. Giovani has applied for the renewal of the lease but has
requested that the new lease be transferred into his grandson’s name, Anthony Foresta. Giovani
was advised by the department that the rent would be increased if the lease was renewed. On
expiry of the old lease, the lease was renewed in Anthony’s name on the same terms and
conditions, except that the rent charged was at a higher rate.
C. Effect on native title, compensation and
decision-making
Part 5
Does the non-extinguishment principle apply?
Yes, the non-extinguishment principle applies to all future acts that proceed under this Module.
This means that native title rights and interests affected by the doing of the future act continue to
exist and are not extinguished. However, while the future act exists, those native title rights and
interests that are inconsistent with the future act are not able to be exercised or enjoyed.
Part 6
Is compensation payable for the doing of the future act?
Compensation for the effect of the future act on native title rights and interests is payable under
this section if there is a successful claim for compensation. Compensation is payable by the
State where the act is attributable to the State.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
18
Part 7
Who makes the decision whether this module applies?
There are no actual delegations to make decisions in relation to native title under the Native Title
Work Procedures, the NTA or the NTQA.
The native title assessment process is just one part of your decision-making process when
making a decision under legislation, eg. a decision to renew a licence. By carrying out a native
title assessment, you are ensuring your decision complies with the NTA. However, please
ensure that, where requested in this Module, you provide all details about your proposed
future act to Aboriginal and Torres Strait Islander Land Services through your NTCO.
If you are unsure how to proceed, your NTCO must be contacted for advice. If the NTCO is
unsure how to proceed, Aboriginal and Torres Strait Islander Land Services must be contacted
for advice.
If this Module does not apply to the proposed future act,
please proceed to the next Module.
eg
im
e
The Batting Order
ac
tr
s24KA
Fu
tu
re
s24JA
Module L – Low impact future acts
Module K – Facilities for services to the public
Module J – Reservations and leases
s24JAA Module JAA - Public housing and certain government
infrastructure on Indigenous land
s24HA
s24GE
s24GD
s24FA
s24NA Module M&N – Freehold test
(onshore places), acquisitions,
s24MD
mining, offshore places.
s24LA
s24IA
s24GB
Invalid future acts – see Module O
Modules IB & IC – Pre-existing right-based acts and renewals, etc
Module H – Water, living aquatic resources, airspace
Module GE – Third party rights on non-exclusive pastoral/agricultural leases
Module GD – off-farm activities directly connected to primary production
Module GB – Primary production on non-exclusive pastoral/agricultural leases
Module F – Section 24FA protection – non-claimant applications
Registered Indigenous land use agreements (see Module AC)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module IC V3
Chapter 5: Future Acts
19
Department of Natural Resources and Mines
Module JAA
Public housing and certain government infrastructure
on Indigenous land
Date: 8 October 2015
Queensland
Government
Module JAA
Section 24JAA
Public housing and certain government infrastructure on
Indigenous land
DOES THE PROPOSED FUTURE ACT FIT WITHIN THIS MODULE?
BEFORE USING THIS MODULE YOU MUST FIRST ADVISE THE
REMOTE INDIGENOUS LAND AND INFRASTRUCTURE
PROGRAM OFFICE, DEPARTMENT OF COMMUNITIES
PHONE: (07) 40573861
LOCATION: GR FLOOR, 138 SPENCE STREET CAIRNS QLD 4870
POSTAL ADDRESS: PO BOX 5461 CAIRNS QLD 4870
For this Module to apply, your proposed future act must not fall within an earlier Module.
This Module helps you assess whether your proposed future act –


is being done on Indigenous land;
AND
consists or permits the construction of public housing or certain government facilities
that are for the benefit of the Indigenous community, or staff housing provided in
connection with public housing or certain government facilities.
If your future act does not fall within this Module, proceed to Module J.
NB. Module J only applies to certain Indigenous land, eg. shire lease land and Aboriginal
and Torres Strait Islander reserves.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module JAA V1
Chapter 5: Future Acts
2
TABLE OF CONTENTS
Part 1
What is section 24JAA? ............................................................................................ 4
Part 2
What is the purpose of section 24JAA? .................................................................... 5
A. Initial requirements
Part 3
Introduction................................................................................................................. 5
Part 4
Does my future act satisfy the requirements of section 24JAA? ............................... 5
B. Procedural rights and validity
Part 5
How to apply procedural rights................................................................................ 10
Part 6
Notification and opportunity to comment ................................................................. 10
Part 7
Consultation ............................................................................................................ 11
Part 8
Report to the Commonwealth Minister .................................................................... 12
C. Effect on native title compensation and decision-making
Part 9
What is the effect of an act done under section 24JAA on native title rights and
interests? .................................................................................................................. 13
Part 10
Is compensation payable for the doing of the future act? ........................................ 13
Part 11
Who makes the decision whether this Module applies? .......................................... 14
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module JAA V1
Chapter 5: Future Acts
3
Part 1
What is section 24JAA?
Section 24JAA deals with certain future acts done on Indigenous land tenures, eg. Aboriginal or
Torres Strait Islander Deed of Grant in Trust land.
The future act must consist of or permit the construction of –
(a) public housing for Aboriginal people or Torres Strait Islanders living in or in the vicinity of
the area; and/or
(b) certain government facilities (public education, public health, police or emergency
facilities) provided it is for the benefit of the Aboriginal people or Torres Strait Islanders
living in or in the vicinity of the area; and/or
(c) staff housing provided in connection with public housing or certain government facilities
covered by paragraphs (a) or (b) above.
The future act may also include a sewerage treatment facility, facilities listed under section 24KA
of the NTA (refer to Module K) and those listed by regulation, provided they are linked to the
public housing, certain government facilities, or staff housing mentioned in paragraphs (a), (b) or
(c) above.
However, for the future act to be valid the State must comply with the procedural requirements
set out in Division B. Failure to do so will render the dealing invalid as against native title.
Example of a future act that falls under this Module
The registration of a trustee lease on an Aboriginal Deed of Grant in Trust that permits the
lessee (ie. the State) to construct a new health clinic. As part of this project a sewerage
pipeline, water pipeline and electricity line (facilities under section 24KA) are required to be
constructed.
Not all dealings on Indigenous land are covered by this Module
Just because a proposed dealing is to occur on Indigenous land, does not mean
it will be covered by this Module. Examples of dealings not covered are 99 year
home ownership leases, water treatment facilities and dams.
Module has limited lifespan
This Module will only apply until and including 15 December 2020. Any future
acts to be done under this Module must commence prior to that date.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module JAA V1
Chapter 5: Future Acts
4
Part 2
What is the purpose of section 24JAA?
Section 24JAA allows certain dealings to proceed on Indigenous land where previously they
could only proceed via a registered Indigenous land use agreement (ILUA). Whilst an ILUA is
always an option, this section allows the State to deliver vital infrastructure in a timely manner,
where required, whilst still meaningfully engaging with the relevant native title parties.
This Module is set out in 3 divisions –
A. Initial requirements;
B. Procedural rights and validity; and
C. Effect on native title, compensation and decision-making.
A. Initial requirements
Part 3 Introduction
This Division is titled “initial” requirements as it is not until you complete the procedural rights
process at Division B that your future act is valid in relation to native title.
Part 4 Does my future act satisfy the requirements of section
24JAA?
Your proposed future act will fall within section 24JAA if it satisfies ALL of the following
requirements –
Requirement 1
The proposed future act is at least partly onshore.
What is an onshore place?
The NTA makes a distinction between future acts done on an onshore place and an offshore
place.
As a general rule, an onshore area for the State of Queensland extends down to the low water
mark and includes internal bodies of waters such as rivers, canals and heavily enclosed bays.
It would also include islands off the coast of Queensland, such as Fitzroy Island down to the low
water mark.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module JAA V1
Chapter 5: Future Acts
5
However, what constitutes “onshore” and what constitutes “offshore” can be a difficult question,
particularly in relation to bays. For example, coastal waters in the form of bays enclosed within
the jaws of the land forming part of the inland waters are considered onshore. However, what is
the criteria for such waters to be considered sufficiently landlocked – is it the open mouth or
jaws of a man or of a crocodile?1 The Australian Courts continue to struggle with this question.
Therefore, you satisfy this requirement if your proposed dealing area is at least in part either:
(a) on land - mainland Queensland or an island off the coast of Queensland; or
(b) in onshore waters – waters extending down to the low water mark, or within a watercourse or
within a heavily enclosed bay.
AND
Requirement 2
Your proposed future act relates to an area of Indigenous land.
Definition - Indigenous land
 Freehold granted under the Aboriginal Land Act 1991 or Torres Strait Islander Land Act
1991.
 Deed of grant in trust for Aboriginal or Torres Strait Islander purposes under the Land Act
1962 or Land Act 1994.
 Aurukun and Mornington Shire leases under the Local Government (Aboriginal Lands) Act
1978.
 Reserves for Aboriginal or Torres Strait Islander purposes gazetted under various land
legislation.
AND
Requirement 3
The proposed future act:

permits or requires the construction, operation, use, maintenance or repair of; or

consists of the construction, operation, use, maintenance or repair of,
Examples
“permits or requires”
The grant of a 40 year trustee lease for the construction and operation of social housing
under the Aboriginal Land Act 1991.
1
Justice Hill in The Fagernes ([1926] P.185 at p.189 as noted in Mary Yarmirr & Ors v The Northern
Territory of Australia & Ors [1998] 771 FCA (6 July 1998)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module JAA V1
Chapter 5: Future Acts
6
The grant of a sales permit for the construction of a road for new public housing on an
Aboriginal Deed of Grant in Trust under the Forestry Act 1959.
When issuing a lease or other interest, it must be strictly limited to the
facilities as listed and defined in this requirement.
“consists of”
The construction of a sewerage treatment facility by the Torres Strait Island Regional
Council on a Torres Strait Islander Deed of Grant in Trust.
(a) public housing provided for Aboriginal people or Torres Strait Islanders living in, or in the
vicinity of, the area;
Definition
Public housing means housing operated by or on behalf of the Crown, or a local
government body or other statutory authority of the Crown, in any of its capacities.
This does not cover housing for private ownership.2
It also does not
cover public housing where it is operated by a private trustee, where the
private trustee is NOT doing it on behalf of the Commonwealth, State,
statutory authority of the Commonwealth/State or local government body.
(b) any of the following facilities that benefit Aboriginal people or Torres Strait Islanders living
in, or in the vicinity of, the area:
(i) public education facilities;
(ii) public health facilities;
(iii) police facilities; and/or
(iv) emergency facilities; or
Definitions
Facilities that benefit Aboriginal people or Torres Strait Islanders
The facility must principally or primarily benefit Aboriginal people or Torres Strait
Islanders living in the area. The facility can provide an incidental benefit to others, such
as a public health facility that could be used by non-Indigenous community staff or a fire
station which serviced the surrounding region as well. However, the facility cannot be
one that is intended primarily to service a nearby non-Indigenous community.
2
3
3
Paragraph 1.6 (first dot point), Explanatory Memorandum – Native Title Amendment Bill (No.2) 2009
Paragraph 1.6 (second dot point), Explanatory Memorandum – Native Title Amendment Bill (No.2) 2009
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module JAA V1
Chapter 5: Future Acts
7
Public education facilities means education facilities operated by or on behalf of the
Commonwealth, the State, a local government body or other statutory authority of the
Commonwealth or State, in any of its capacities. This does not include private schools or
other private education facilities.
Public health facilities means health facilities operated by or on behalf of the
Commonwealth, the State, a local government body or other statutory authority of the
Crown, in any of its capacities.
Emergency facilities includes a fire station, ambulance station, child safety house.
Police facilities includes a police station, court house, police citizens youth club centre.
(c) Staff housing provided in connection with public housing or certain government facilities
covered by paragraphs (a) or (b).
Definition
Staff housing means housing provided in connection with housing described at (a) or
facilities described at (b) above.
(d) any of the following provided in connection with the facilities at (a), (b) or (c):
(i) facilities listed in Module K – refer to Module K;
(ii) sewerage treatment facilities; and/or
(iii) facilities prescribed by regulation.
AND
Requirement 4
The proposed future act will permit or consist of the construction, operation, use, maintenance or
repair by or on behalf of –

the Commonwealth;

the State;

a local government body; or

a statutory authority of the Commonwealth or State.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module JAA V1
Chapter 5: Future Acts
8
Definitions
What is “on behalf of”?
This means that the facility does not need to be constructed etc by the Commonwealth, State,
local government body or statutory authority of the Commonwealth or State. In some cases, a
tendering and contractor process may be used. In this case, the State etc will authorise and pay
for the facility, it just chooses not to physically construct the facility.
Where funding is provided through a grant to a private community group or an individual for the
construction of a facility, it is not done “on behalf of” the State, etc.
“statutory authority” – in relation to the Commonwealth or State, means any authority or body
(including a corporation sole) established by a law of the Commonwealth or State other than a
general law allowing incorporation as a company or body corporate.
4
NB. Government Owned Corporations (“GOCs”) are not included in this definition5.
AND
Requirement 5
The proposed future act is not the compulsory acquisition of native title rights and interests.
Example
The compulsory acquisition of native title rights and interests under the Acquisition of Land Act
1967 for a state educational institution, e.g. a state school.
If your proposed future act satisfies ALL of the above 5 requirements, you must now
complete the procedural requirements set out in Division B.
If your proposed future act does not satisfy ALL of the above
requirements in Division A, you must consider whether your proposed
future act falls within Module J.
4
Section 253, NTA
All statutory GOCs have been converted to company GOCs – see Government Owned Corporations
Amendment Act 2007 which amended the Government Owned Corporations Act 1993.
5
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module JAA V1
Chapter 5: Future Acts
9
B. Procedural rights and validity
Part 5
How to apply procedural rights
The best way to follow through the procedural rights process is to work through the flowchart.
The Parts in this Division provide guidance on what is required to meet the different type of
procedural rights.
Part 6
Notification and opportunity to comment
The first step in the procedural rights process is providing a notification and an opportunity to
comment to the following native title parties –
(a)
any registered native title claimants;
(b)
any registered native title bodies corporate (can only exist where there is a determination
that native title exists); and
(c)
the native title representative body.
Notification
Complete the notification template for this Module. Do not use any other templates
as the template for this Module contains information specifically required for section
24JAA of the NTA.
The notification should be sent by registered post.
A number of future acts for the one project
If, for a particular project, there are a number of future acts falling under section 24JAA involving
a number of different departments then one notification can be used.
This allows a more
centralised approach to the procedural rights process.
Opportunity to comment
An opportunity to comment is not a right of veto. It is an opportunity for the native title parties to
advise the decision-maker as to how they see the proposed future act/s impacting upon their
native title rights and interests.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module JAA V1
Chapter 5: Future Acts
10
The notification must include a statement that any registered native title claimants or registered
native title bodies corporate may request to be consulted about the proposed future acts. See
Part 7.
The notification period is for 2 months from the notification day. You must build
in enough time for postage so you will need to post date the notification day by
5 calendar days.
You cannot commence the proposed future act until –
(a) the 2 month notification period has ended; and
(b) a report has been provided to the Commonwealth Minister about
the notification process. See Part 8.
However, if a request to be consulted is made within the two month
notification period, then there is a further consultation period before you can
commence the proposed future act. See Part 7.
Part 7
Consultation
If the registered native title claimants or registered native title bodies corporate request to be
consulted about the proposed future acts then you must consult with them about –
(a) ways of minimising the impact of the future act/s on their registered native title rights and
interests in relation to the land and waters; and
(b) if relevant, any access to the land or waters or the way in which anything authorised by
the future act/s might be done.
Consultation
Consultation on the proposed future act must also comply with any requirements
determined by way of legislative instrument. Currently, there is no relevant legislative instrument.

Where the proposed future act is for public housing – use Attachment A.

Where the proposed future act is for other government infrastructure, an enhanced
consultation process applies – use Attachment B.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module JAA V1
Chapter 5: Future Acts
11
The consultation period is for a further 2 months.
This means that the
consultation period does not end until 4 months from the notification day, unless
it was shortened (see the paragraph below).
As soon as the native title party
requests to be consulted you may commence the consultation process.
You cannot commence the proposed future act until –
(a) the 4 month notification and consultation period has ended, or earlier
provided each registered native title claimant and registered native title body
corporate who requested to be consulted advise in writing that they have been
consulted; and
(b) a report has been provided to the Commonwealth Minister about the
notification and consultation process. See Part 8.
Part 8
Report to the Commonwealth Minister
Before the proposed future act can commence a written report must be provided to the
Commonwealth Minister about the notification and consultation process. This Report may be
published by the Commonwealth Minister.
The report must include –
(a) whether or not there were comments on the proposed future act/s;
(b) whether or not there were requests to be consulted about the proposed future act/s;
(c) a copy of the notification;
(d) any responses to the notification.
Report
Complete the report template for this Module. Do not use any other templates as the
template for this Module contains information specifically required for section 24JAA
of the NTA.
The report must also comply with any requirements determined by way of legislative instrument.
Currently, there is no relevant legislative instrument.
Where an Infrastructure Agreement is reached under the enhanced consultation process, note
that as a fact in the Report.
How to provide the report
The report must be sent by registered mail.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module JAA V1
Chapter 5: Future Acts
12
The report can be taken as having been provided to the Commonwealth
Minister two working days after it was sent by registered post.
You may now commence the proposed future act/s.
C. Effect on native title, compensation and
decision-making
Part 9 What is the effect of an act done under section 24JAA on
native title rights and interests?
The non-extinguishment principle applies to a future act done under section 24JAA of the NTA.
Non-extinguishment principle
This means that native title rights and interests affected by the doing of the future act continue to
exist and are not extinguished. However, while the future act exists, those native title rights and
interests inconsistent with the future act are not able to be exercised or enjoyed.
Example
Native title is suppressed for the term of the registered trustee lease for a health clinic on an
Aboriginal Deed of Grant in Trust.
Part 10 Is compensation payable for the doing of the future act?
Compensation for the effect of the future act on native title rights and interests is payable under
this section if there is a successful claim for compensation. Compensation is payable by the
State where the act is attributable to the State, unless a law of the State provides that another
person is liable to pay the compensation.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module JAA V1
Chapter 5: Future Acts
13
Part 11
Who makes the decision whether this Module applies?
There are no actual delegations to make decisions in relation to native title under the Native Title
Work Procedures, the NTA or the NTQA.
The native title assessment process is just one part of your decision-making process when
making your decision under your legislation, e.g. a decision to grant a lease. By carrying out a
native title assessment, you are ensuring your decision complies with the NTA.
If the decision-maker is unsure how to proceed, your NTCO must be contacted for advice. If the
NTCO is unsure how to proceed, the NTCO must contact Aboriginal and Torres Strait Islander
Land Services for advice.
If this Module does not apply to the proposed future act,
please proceed to the next Module.
Invalid future acts – see Module O
The Batting Order
s24NA Module M&N – Freehold test
e
s24MD
eg
im
s24LA
ac
tr
s24KA
Fu
tu
re
s24JA
Module K – Facilities for services to the public
Module J – Reservations and leases
facilities, and staff housing on Indigenous land
s24HA
s24GE
s24GD
s24FA
Module L – Low impact future acts
s24JAA Module JAA - Public housing, certain government
s24IA
s24GB
(onshore places), acquisitions,
mining, offshore places.
Modules IB & IC – Pre-existing right-based acts and renewals, etc
Module H – Water, living aquatic resources, airspace
Module GE – Third party rights on non-exclusive pastoral/agricultural leases
Module GD – off-farm activities directly connected to primary production
Module GB – Primary production on non-exclusive pastoral/agricultural leases
Module F – Section 24FA protection – non-claimant applications
Registered Indigenous land use agreements (see Module AC)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module JAA V1
Chapter 5: Future Acts
14
Department of Natural Resources and Mines
Module JAA Attachment A
Consultation process guideline for public housing
Date: 8 October 2015
Queensland
Government
Module JAA Attachment A
Section 24JAA
Consultation process guideline for public housing
Does your proposed future act fall within Module JAA and the native title
party has requested to be consulted?
This Attachment is a guideline for consultation processes required
under section 24JAA of the NTA.
You should only be using this Attachment where –
(a) your proposed future act falls within Module JAA; and
(b) the consultation has been requested within the required
time period by the registered native title bodies corporate
and/or registered native title claimants.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment A V2
2
TABLE OF CONTENTS
Part 1
Introduction...................................................................................................................... 4
Part 2
Legislative requirements for consultation ......................................................................... 4
Part 3
Policy requirements for consultation ................................................................................ 5
Part 4
What is to ‘consult’? ......................................................................................................... 6
Part 5
Time for consultation ........................................................................................................ 7
Part 6
Steps for consultation ....................................................................................................... 7
Step 1
Receipt of request to be consulted................................................................................... 7
Step 2
Contact the native title party............................................................................................. 8
Step 3
Contact the trustee of the Indigenous land ...................................................................... 8
Step 4
Prepare for the meeting .................................................................................................. 8
Step 5
Holding the meeting ........................................................................................................ 9
Step 6
Any further consultation ................................................................................................... 9
Step 7
Finalise details of proposed future act and proposed dealing area ............................... 10
Step 8
Advise native title party of outcome of consultation ....................................................... 10
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment A V2
3
Part 1
Introduction
Consultation forms a key part of the procedural rights process under section 24JAA of the
Commonwealth Native Title Act 1993 (NTA). This requirement is set out in Part 7 of Module
JAA.
This Guideline seeks to assist officers in carrying out that consultation.
The Guideline is based upon section 24JAA of the NTA, the relevant Explanatory Memorandum
and State native title policy.
Consultation on the proposed future act must also comply with any requirements determined by
way of legislative instrument. At the time of publishing, there is no relevant legislative
instrument.1
Part 2
Legislative requirements for consultation
The consultation process under section 24JAA is only triggered where the registered native title
bodies corporate and/or registered native title claimants advise in writing that they wish to be
consulted about the doing of the proposed future act in so far as it affects their native title rights
and interests.
This request must be made within the required time period set out in the notice,
that is, within the period of 2 months beginning on the notification day.
If a request to be consulted is made, then you must consult with the native title party about –
(a) ways of minimising the impact of the future act/s on their registered native title rights and
interests in relation to the land and waters;
and
(b) if relevant:
(i)
any access to the land or waters; or
(ii)
the way in which any thing authorised by the future act/s might be done.
1
Once a legislative instrument has been made, the requirements determined by the legislative instrument will be
incorporated into this Guideline.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment A V2
4
The Explanatory Memorandum advises that the legislative instrument, when made, may specify
requirements as to the manner of consultation and matters to be dealt with through consultation.2
It advises –
It may require the action body to hold one or more face to face meeting with native title
claimants or body corporate who have requested consultation, provide translators during
consultation, or address issues of the design, location and nature of the proposed act.
Part 3
Policy requirements for consultation
The key basic necessities for life are food, water and shelter. The need for improved shelter,
that is housing, is currently a key priority for Australian Governments.
The National Partnership Agreement on Remote Indigenous Housing advises in its objective –
Housing investment for the benefit of Indigenous people in remote Indigenous communities is a
central plank to achieving the targets for ‘Closing the Gap’ on Indigenous disadvantage.3
As part of Closing the Gap on Indigenous disadvantage, the Council of Australian Governments
is committed to reforming
housing and infrastructure arrangements in remote Indigenous communities. This will address
significant overcrowding, homelessness, poor housing conditions and severe housing shortages
in remote Indigenous communities. Improving housing conditions will provide the foundation for
lasting improvements in health, education and employment and make a major contribution
towards closing the gap in Indigenous disadvantage.4
It is therefore important that the State deliver this public housing as quickly and efficiently as
possible, in compliance with the NTA.
This is why two separate consultation guidelines have been developed for public housing and
other government infrastructure.
2
[1.14], Explanatory Memorandum to the Native Title Amendment Bill (No.1) 2010
3
Clause 11 http://www.coag.gov.au/intergov_agreements/federal_financial_relations/docs/national_partnership/nation
al_partnership_on_remote_indigenous_housing.pdf
4
http://www.fahcsia.gov.au/sa/indigenous/pubs/general/Documents/closing_the_gap/p3.htm
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment A V2
5
This Guideline for public housing sets out a straightforward but solid consultation process
focussed on the matters that must be consulted about as set out in Part 2.
In contrast, the Guideline for other government infrastructure (Attachment B) sets out an
enhanced consultation process. The State considers that the consultation process for the nonhousing government infrastructure provides an opportunity for the State to deliver a greater
benefit to the native title holders and the Indigenous community in which the infrastructure will be
located.
Part 4
What is to ‘consult’?
The Macquarie Dictionary defines consult as –
1. to seek counsel from; ask advice of
2. to refer to for information
3. to have regard for (a person’s interest, convenience, etc.) in making plans;
4. to consider or deliberate; take counsel; confer.
Therefore, the consultation right is not a veto or consent right.
The State is not seeking the native title party’s consent to the proposed future act nor is it
seeking their agreement through the consultation process.
However, it is hoped that through the consultation process, the native title party feels that their
concerns have been heard and understood, even if those concerns are unable to be addressed
to their satisfaction.
Any relevant concerns, issues and comments raised by the native title party must be
considered before making the final decision to proceed with the proposed future act. In
some cases, this may result in proceeding in a modified way.
To guide the consultation, the relevant principles contained in the Guidelines for Best Practice Flexible and Sustainable Agreement Making should be followed.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment A V2
6
Part 5
Time for consultation
As soon as the native title party requests to be consulted (provided the request is made in the
required time period) you may commence the consultation process.
The consultation period ends 4 months from the notification day, unless it is
shortened. It can only be shortened if each native title party who requested to
be consulted advise in writing that they have been consulted.
This means you will have at a minimum 2 months in which to consult. More, if the native
title party requests to be consulted earlier in the notification period.
Part 6
Steps for consultation
This part sets out the process for consultation in a number of steps. By following the steps, you
are ensuring that your consultation process meets the requirements under the NTA.
The steps are set out in the flowchart at the end of this Attachment.
Step 1
Receipt of request to be consulted
In response to the section 24JAA notification, you have received a request to be consulted about
the proposed future act. This may or may not have been accompanied by comments.
The right to consultation only arises where the request is made within the 2 month
notification period, and it is made by the registered native title body corporate and/or
registered native title claimants.
Provided the report has not been provided to the Commonwealth Minister,
discretion may be used as to the date the request is received. For example, if
the request was received a day late, then you may wish to consider the
consultation request.
If no consultation request is made within the required time period, then
proceed directly to Part 8 of Module JAA.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment A V2
7
Step 2
Contact the native title party
Your next step is to contact the native title party, i.e. the registered native title body corporate
and/or registered native title claimants, to arrange a meeting.
This should be done by way of letter using Template A.
At a minimum, one meeting must be held with the native title party. It is probably best
that the meeting be held in the relevant Indigenous community. However, an offer can
be made that the meeting be held elsewhere, if the native title party would prefer.
If there is more than one native title party, you may wish to offer separate meetings.
However, joint consultations could be held where the native title parties agree. To seek
guidance on this point, contact the Claim Resolution unit of Aboriginal and Torres Strait
Islander Land Services (ATSILS).
Step 3
Contact the trustee of the Indigenous land
It is very likely that you have already contacted the trustee, e.g. the Council, about the proposed
future act before commencing the section 24JAA process. This is because your proposed future
act is likely to require an approval from the trustee, such as a trustee lease.
It is recommended that you now contact or recontact the trustee to –
(a) advise the trustee of where you are at in the native title process;
(b) advise that a meeting has been arranged with the native title party for x date; and
(c) seek permission to enter the trust area (i.e. the Indigenous land) to hold the meeting.
Step 4
Prepare for the meeting
In preparing for the meeting consider the following –
(a) all relevant comments received from the native title party – Annexure 8.5;
(b) preparation of visual material, e.g. maps, plans, design drawings;
(c) travel arrangements – flights, car hire and accommodation;
(d) catering; and
(e) what, if any, next steps you might consider.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment A V2
8
Departments and agencies are responsbile for adequately resourcing the consultation by
way of both budget and appropriately skilled personnel. This includes responding to
reasonable requests from the native title party for resourcing required for their
participation, including travel or meeting costs and obtaining appropriate professional
advice, etc. 5
Step 5
Holding the meeting
The meeting is a time to consult, that is, explain the proposed future act (including through maps,
plans, etc.), listen and answer questions.
To meet the legislative requirement, the conversation at the meeting should be directed
to discussing –
(a)
ways of minimising the impact of the future act on the registered native title rights
and interests; and
(b)
the access to the future act area (if relevant); and
(c)
the way in which the future act may be done (if relevant).
The conversation should also include discussing the location, nature of the proposed future act
and its design.
Make sure someone takes notes at the meeting so that the consultation can be accurately
recorded.
Where possible, use part of the meeting to go and have a look at the proposed future act
area. This may provide a useful way to explain the proposed future act, proposed
dealing area and access.
Step 6
Any further consultation
It is possible that as a result of the meeting further consultation is required or requested by the
native title party.
5
Under the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth), a registered native title body corporate
may charge the State a fee for costs when performing certain activities in relation to future acts. In the case of section
24JAA, it may charge the State for costs it incurs in relation to the consultation process.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment A V2
9
This could be in the form of another meeting or through provision of further information (such as
modified plans/design drawings) for comment. A further option may be holding a meeting by
way of teleconference or video conference. However, this will be dependant upon the
technology available and whether it is appropriate in the circumstances.
The type of, and need for, further consultation will need to be decided on a case by case basis.
Step 7 Finalise details of proposed future act and proposed dealing
area
Having considered the relevant comments and also the consultation outcomes, decide whether
you will –
(a) proceed as is, i.e. with no changes;
(b) proceed in a modified way, e.g. adjusting the location or certain aspect of the design of a
building;
(c) not proceed.
Step 8 Advise native title party of outcome of consultation
As a final step, advise the native title party of the outcome of the consultation.
Use Template C. Where appropriate, you may wish to also use this letter to request the
native title party to respond in writing that they have been consulted. This will allow you
to proceed to the next step without having to wait for the 2 month consultation period to
end. Remember, if there is more than one native title party, you must receive the
response from all notified native title parties.
You have now completed the consultation process. Please proceed to
Part 8 of Module JAA which deals with your next step – Report to the
Commonwealth Minister.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment A V2
10
Flowchart – Steps for consultation process
Notification day
Step 1 - Receipt of comments
and request to be consulted
Step 2 - Contact registered native title bodies corporate /
registered native title claimants to arrange meeting
2 months
End of notification
period
Step 3 - Contact the trustee
Step 4 - Prepare for meeting, including
consideration of comments
Step 5 - Meeting
2 months, unless
native title party
shortens it in
writing
Step 6 - Further
consultation
Step 7 - Finalise details of
proposed dealing area
and future act
Step 8 - Advise registered native title bodies corporate /
registered native title claimants of outcome of consultation
End of consultation
period
Report provided to
Commonwealth
Commence future
act
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment A V2
11
Department of Natural Resources and Mines
Module JAA Attachment B
Consultation process guideline for other government
infrastructure
Date: 8 October 2015
Queensland
Government
Module JAA Attachment B
Section 24JAA
Consultation process guideline for other government
infrastructure
Does your proposed future act fall within Module JAA and the native title
party has requested to be consulted?
This Attachment is a guideline for consultation processes required
under section 24JAA of the NTA.
You should only be using this Attachment where –
(a) your proposed future act falls within Module JAA; and
(b) the consultation has been requested within the required
time period by the registered native title bodies corporate
and/or registered native title claimants.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment B V2
2
TABLE OF CONTENTS
Part 1
Introduction...................................................................................................................... 4
Part 2
Legislative requirements for consultation ......................................................................... 4
Part 3
Policy considerations and requirements for consultation ................................................. 5
Part 4
Enhanced consultation process ....................................................................................... 6
Part 5
What is to ‘consult’ and to ‘negotiate’? ............................................................................. 7
Part 6
Time for consultation ........................................................................................................ 8
Part 7
Steps for consultation / negotiation .................................................................................. 8
Step 1
Receipt of request to be consulted................................................................................... 9
Step 2
Contact the native title party............................................................................................. 9
Step 3
Contact the trustee of the Indigenous land ...................................................................... 9
Step 4
Prepare for the meeting ................................................................................................ 10
Step 5
Holding the meeting ...................................................................................................... 10
Step 6
Any further consultation / negotiation ............................................................................. 11
Step 7
Reaching and signing of agreement .............................................................................. 12
Step 8
Finalise details of proposed future act and proposed dealing area ............................... 12
Step 9
Advise native title party of outcome of consultation / negotiation, where agreement cannot be reached.......................................................................................................... 13
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment B V2
3
Part 1
Introduction
Consultation forms a key part of the procedural rights process under section 24JAA of the
Commonwealth Native Title Act 1993 (NTA). This requirement is set out in Part 7 of Module
JAA.
This Guideline seeks to assist officers in carrying out that consultation.
The Guideline is based upon section 24JAA of the NTA, the relevant Explanatory Memorandum
and State native title policy.
Consultation on the proposed future act must also comply with any requirements determined by
way of legislative instrument. At the time of publishing, there is no relevant legislative
instrument.1
Part 2
Legislative requirements for consultation
The consultation process under section 24JAA is only triggered where the registered native title
bodies corporate and/or registered native title claimants advise in writing that they wish to be
consulted about the doing of the proposed future act in so far as it affects their native title rights
and interests.
This request must be made within the required time period set out in the notice,
that is, within the period of 2 months beginning on the notification day.
If a request to be consulted is made, then you must consult with the native title party about –
(a) ways of minimising the impact of the future act/s on their registered native title rights and
interests in relation to the land and waters;
and
(b) if relevant:
(i)
any access to the land or waters; or
(ii)
the way in which any thing authorised by the future act/s might be done.
1
Once a legislative instrument has been made, the requirements determined by the legislative instrument will be
incorporated into this Guideline.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment B V2
4
The Explanatory Memorandum advises that the legislative instrument, when made, may specify
requirements as to the manner of consultation and matters to be dealt with through consultation.2
It advises –
It may require the action body to hold one or more face to face meeting with native title
claimants or body corporate who have requested consultation, provide translators during
consultation, or address issues of the design, location and nature of the proposed act.
Part 3
Policy considerations and requirements for consultation
The key basic necessities for life are food, water and shelter. The need for improved shelter,
that is housing, is currently a key priority for Australian Governments.
The National Partnership Agreement on Remote Indigenous Housing advises in its objective –
Housing investment for the benefit of Indigenous people in remote Indigenous communities is a
central plank to achieving the targets for ‘Closing the Gap’ on Indigenous disadvantage.3
As part of Closing the Gap on Indigenous disadvantage, the Council of Australian Governments
is committed to reforming
housing and infrastructure arrangements in remote Indigenous communities. This will address
significant overcrowding, homelessness, poor housing conditions and severe housing shortages
in remote Indigenous communities. Improving housing conditions will provide the foundation for
lasting improvements in health, education and employment and make a major contribution
towards closing the gap in Indigenous disadvantage.4
It is therefore important that the State deliver this public housing as quickly and efficiently as
possible, in compliance with the NTA.
This is why two separate consultation guidelines have been developed for public housing and
other government infrastructure.
2
[1.14], Explanatory Memorandum to the Native Title Amendment Bill (No.1) 2010
3
Clause 11 http://www.coag.gov.au/intergov_agreements/federal_financial_relations/docs/national_partnership/nation
al_partnership_on_remote_indigenous_housing.pdf
4
http://www.fahcsia.gov.au/sa/indigenous/pubs/general/Documents/closing_the_gap/p3.htm
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment B V2
5
The Guideline for public housing (Attachment A) sets out a straightforward but solid
consultation process focussed on the matters that must be consulted about as set out in Part 2.
In contrast, this Guideline for other government infrastructure sets out an enhanced consultation
process. The State considers that the consultation process for the non-housing government
infrastructure provides an opportunity for the State to deliver a greater benefit to the native title
holders and the Indigenous community in which the infrastructure will be located.
Part 4
Enhanced consultation process
The key elements of the enhanced consultation process is as follows –
Converting the required consultation process to a negotiation process
Negotiating about a broader range of matters –
(a) the things which must be consulted about under section 24JAA – see Part 2.
(b) cultural heritage – this could form an agreement for the purposes of the
Aboriginal Cultural Heritage Act 2003 or Torres Strait Islander Cultural
Heritage Act 2003; and
(c) addressing other community needs, eg. playground equipment, landscaping a
park area, including an office space in a building for a registered native title
body corporate or a community worker, constructing a cultural centre, new
text books for school children;
Reaching an agreement in the form of a template Infrastructure Agreement about
the things that are negotiated.
This enhanced consultation process is not seeking the native title
party’s consent to the proposed future act.
This Agreement is NOT in the form of an Indigenous land use
agreement. This is because the Agreement is not providing consent to
the proposed future act nor is it dealing with native title compensation
for the doing of the future act.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment B V2
6
If agreement cannot be reached, then the proposed future act still
proceeds under section 24JAA. Not only is it still valid under section
24JAA but it is also essential community infrastructure that should not
be unnecessarily delayed.
As this infrastructure is still essential community infrastructure the timeframe is
the same as that required for consultation under section 24JAA.
To guide the negotiations, the principles contained in the Guidelines for Best
Practice Flexible and Sustainable Agreement Making should be followed.
Part 5
What is to ‘consult’ and to ‘negotiate’?
The Macquarie Dictionary defines consult as –
1. to seek counsel from; ask advice of
2. to refer to for information
3. to have regard for (a person’s interest, convenience, etc.) in making plans;
4. to consider or deliberate; take counsel; confer.
The Macquarie Dictionary defines  “negotiate” as (amongst other things) –
1. to treat with another or others, as in the preparation of a treaty, or in preliminaries to a
business deal
2. to arrange for or to bring about by discussion and settlement of terms
 “negotiation” as –
Mutual discussion and arrangement of the terms of a transaction or agreement.
The Guidelines for Best Practice – Flexible and Sustainable Agreement Making assist in
the negotiation process by providing practical guidance for government parties on the
behaviours, attitudes and practices to achieve flexible, broad and efficient agreements
that may be adapted to the circumstances of the particular agreement.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment B V2
7
As the validity for the proposed future act is through section 24JAA, the consultation /
negotiation right is not a veto or consent right. However, under the enhanced process
the State is seeking the native title party’s agreement about the things to be consulted
and negotiated as set out in Part 4.
It is hoped that through the enhanced consultation process, the native title party feels that their
concerns have been heard and understood, even if those concerns are unable to be addressed
to their satisfaction or agreement is able to be reached.
Where agreement has not been reached, you must still consider any relevant concerns,
issues and comments raised by the native title party before making the final decision to
proceed with the proposed future act. In some cases, this may result in proceeding in a
modified way.
Part 6
Time for consultation
As soon as the native title party requests to be consulted (provided the request is made in the
required time period) you may commence the consultation process.
The consultation period ends 4 months from the notification day, unless it is
shortened. It can only be shortened if each notified native title party who
requested to be consulted advise in writing that they have been consulted.
This means you will have at a minimum 2 months in which to consult. More, if the native
title party requests to be consulted earlier in the notification period.
Part 7
Steps for consultation / negotiation
This part sets out the process for consultation / negotiation in a number of steps. By following
the steps, you are ensuring that the enhanced consultation process meets the requirements
under the NTA.
The steps are set out in the flowchart at the end of this Attachment.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment B V2
8
Step 1
Receipt of request to be consulted
In response to the section 24JAA notification, you have received a request to be consulted about
the proposed future act. This may or may not have been accompanied by comments.
The right to consultation only arises where the request is made within the 2 month
notification period, and it is made by the registered native title body corporate and/or
registered native title claimants.
Provided the report has not been provided to the Commonwealth Minister,
discretion may be used as to the date the request is received. For example, if
the request was received a day late, then you may wish to consider the
consultation request.
If no consultation request is made within the required time period, then
proceed directly to Part 8 of Module JAA.
Step 2
Contact the native title party
Your next step is to contact the native title party, i.e. the registered native title body corporate
and/or registered native title claimants, to arrange a meeting.
This should be done by way of letter using Template B.
At a minimum, one meeting must be held with the native title party. It is probably best
that the meeting be held in the relevant Indigenous community. However, an offer can
be made that the meeting be held elsewhere, if the native title party would prefer.
If there is more than one native title party, you may wish to offer separate meetings.
However, joint consultations could be held where the native title parties agree. To seek
guidance on this point, contact the Claim Resolution unit of ATSILS.
Step 3
Contact the trustee of the Indigenous land
It is very likely that you have already contacted the trustee, eg. the Council, about the proposed
future act before commencing the section 24JAA process. This is because your proposed future
act is likely to require an approval from the trustee, such as a trustee lease.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment B V2
9
It is recommended that you now contact or recontact the trustee to –
(a) advise the trustee of where you are at in the native title process;
(b) advise that a meeting has been arranged with the native title party for x date; and
(c) seek permission to enter the trust area (i.e. the Indigenous land) to hold the meeting.
Step 4
Prepare for the meeting
In preparing for the meeting consider the following –
(a) all relevant comments received from the native title party – Annexure 8.5;
(b) preparation of visual material, e.g. maps, plans, design drawings;
(c) travel arrangements – flights, car hire and accommodation;
(d) catering; and
(e) what, if any, next steps you may consider.
Departments and agencies are responsbile for adequately resourcing the consultation /
negotiation by way of both budget and appropriately skilled personnel. This includes
responding to reasonable requests from the native title party for resourcing required for
their participation, including travel or meeting costs and obtaining appropriate
professional advice, etc.5
Step 5
Holding the meeting
The meeting is a time to consult and negotiate, that is, explain the proposed future act (including
through maps, plans, etc.), listen and answer questions.
To meet the legislative and policy requirements, you must consult and negotiate, with a
view to reaching an agreement, about
(a)
ways of minimising the impact of the future act on the registered native title rights
and interests; and
(b)
the access to the future act area (if relevant); and
5
Under the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth), a registered native title body corporate
may charge the State a fee for costs when performing certain activities in relation to future acts. In the case of section
24JAA, it may charge the State for costs it incurs in relation to the consultation process.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment B V2
10
(c)
the way in which the future act may be done (if relevant);
(d)
cultural heritage – this could form an agreement for the purposes of the
Aboriginal Cultural Heritage Act 2203 or Torres Strait Islander Cultural Heritage
Act 2003; and
(e)
addressing other community needs, eg. donation towards playground
equipment, landscaping a park area, including an office space in a building for a
community worker, constructing a cultural centre, donation of new text books for
school children;
Where a physical act on the ground is committed to, the trustee will need to provide approval. Also, it may be a future act in itself. The conversation should also include discussing the location, nature of the proposed future act and its design. In carrying out the negotiation, the principles contained in the Guidelines for Best Practice
Flexible and Sustainable Agreement Making should be followed.
Make sure someone takes notes at the meeting so that the consultation / negotiation can be accurately recorded.
Where possible, use part of the meeting to go and have a look at the proposed future act area. This may provide a useful way to explain the proposed future act, proposed
dealing area and access.
Step 6
Any further consultation / negotiation
It is possible that as a result of the meeting further consultation / negotiation is required or
requested by the native title party.
This could be in the form of another meeting or through provision of further information (such as
modified plans/design drawings) for comment. A further option may be holding a meeting by
way of teleconference or video conference. However, this will be dependant upon the
technology available and whether it is appropriate in the circumstances.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment B V2
11
The type of, and need for, further consultation / negotiation will need to be decided on a case by
case basis.
Step 7 Reaching and signing of agreement
If agreement has been reached, it must be recorded in the template Infrastructure Agreement.
The Agreement must then be signed by –
(a) the State representative;
(b) where there is a registered native title claim - all of the
registered native title claimants; and
(c)
where there is a determination of native title – the registered native title body corporate.
The State should be the final party to sign.
If agreement was not able to be reached, proceed to Step 8.
The Agreement will also advise that the native title party has been consulted for the
purposes of section 24JAA of the NTA. This means that once all parties have signed,
the Report can be provided to the Commonwealth Minister before the end of the
consultation period. This will allow the future act to proceed as soon as possible.
Step 8 Finalise details of proposed future act and proposed dealing
area
If agreement was not able to be reached, consider the relevant comments and the consultation /
negotiation outcomes to decide whether you will –
(a) proceed as is, i.e. with no changes;
(b) proceed in a modified way, e.g. adjusting the location or certain aspect of the design of a
building;
(c) not proceed.
If agreement was able to be reached, take all steps that can be taken, apart from proceeding
with the proposed future act, to ensure that commitments made in the Agreement can be
actioned and the proposed future act can proceed once the Report has been made to the
Commonwealth Minister.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment B V2
12
Step 9 Advise native title party of outcome of consultation /
negotiation, where agreement cannot be reached
As a final step, where agreement cannot be reached, advise the native title party of the outcome
of the consultation.
Use Template C. Where appropriate, you may wish to also use this letter to request the
native title party to respond in writing that they have been consulted. This will allow you
to proceed to issue the Report to the Commonwealth Minister without having to wait for
the 2 month consultation period to end. Remember, if there is more than one native title
party, you must receive the response from all native title parties.
You have now completed the consultation process. Please proceed to
Part 8 of Module JAA which deals with your next step – Report to the
Commonwealth Minister.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment B V2
13
Flowchart – Steps for consultation process
Notification day
Step 1 - Receipt of comments
and request to be consulted
Step 2 - Contact registered native title bodies corporate /
registered native title claimants to arrange meeting
2 months
End of notification
period
Step 3 - Contact the trustee
Step 4 - Prepare for meeting, including
consideration of comments
Step 5 - Meeting
2 months, unless
native title party
shortens it in
writing
Step 6 - Further consultation / negotiation
Step 7 – Reaching and signing
of Agreement
Step 8 - Finalise details of
proposed dealing area
and future act
Step 9 – Where agreement cannot be reached, advise registered
native title bodies corporate / registered native title claimants of
outcome of consultation
End of consultation
period
Report provided to
Commonwealth
Commence future
act
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment B V2
14
Department of Natural Resources and Mines
Module JAA Attachment C
TEMPLATE for registered native title claimants and
registered native title bodies corporate
Notification under section 24JAA of the Commonwealth
Native Title Act 1993 (NTA)
Date: 8 October 2015
Queensland
Government
Module JAA
Section 24JAA
TEMPLATE for registered native title claimants and
registered native title bodies corporate
Notification under section 24JAA of the Commonwealth
Native Title Act 1993 (NTA)
By registered post
Part 1 - Key dates
Date of issue by the State:______________________
Notification day: _______________________
(NB. This is 5 calendar days after the issue date of the notification to allow for postage.)
Any comments or requests to be consulted about the proposed future act/s described in this
notification must be provided in writing by: _______________ to the person identified in Part
8 below.
(NB. This date is 2 months from the notification day).
Part 2 - Native title parties
Registered native title claimants
[insert details or N/A]
Registered native title body corporate
[insert details or N/A]
Native title representative body
[insert details]
Part 3 - Location
The location for the proposed future act/s is described as follows:
Town _____________________________________
Lot ____________ on Plan __________________
Part of Lot _________ on Plan ________________
Approximate area __________
Tenure __________________________________
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment C V1
2
A plan / map is attached showing the locality and specific location.
Part 4 - Future act/s
Background
[insert summary of background of project]
Proposed future act/s
The State proposes to carry out the following future act/s:
[insert details of future act/s]
The facility/ies
The facility/ies identified in the proposed future act/s outlined above fall within the list of
facilities within section 24JAA(3) of the NTA –
(check the relevant boxes)
A - Housing
□
public housing provided for Aboriginal people or Torres Strait Islanders living in, or in
the vicinity of the area;
B - facilities
□ public education facilities for the benefit of Aboriginal people or Torres Strait Islanders
living in, or in the vicinity of the area;
□ public health facilities for the benefit of Aboriginal people or Torres Strait Islanders
living in, or in the vicinity of the area;
□
police facilities for the benefit of Aboriginal people or Torres Strait Islanders living in, or
in the vicinity of the area;
□ emergency facilities for the benefit of Aboriginal people or Torres Strait Islanders living
in, or in the vicinity of the area;
C. Staff housing
□
staff housing provided in connection with housing or facilities covered by A or B
above;
D. Other facilities provided in connection with A, B or C above.
□ things listed in section 24KA(2) - ___________________________;
□ sewerage treatment facilities;.
□ things prescribed by regulation - ____________________________ .
Part 5 – Indigenous cultural heritage
[Insert details about how Indigenous cultural heritage has been addressed or will be
addressed prior to construction.]
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment C V1
3
Part 6 - Seeking your comments
The State is seeking your comments on the proposed future act/s described in this
notification.
Please note that this is not a right of veto but an opportunity for you to provide comments
about the proposed future act/s in relation to the registered native title rights and interests.
You must provide any comments in writing within the 2 month notification period (see Part 1 Key Dates).
Part 7 - Request to be consulted
A registered native title claimant or a registered native title body corporate can make a
request to the State to be consulted about the proposed future act/s.
If consultation is requested, the State will consult with you about ways of minimising the
impact of the future act/s on your registered native title rights and interests in relation to the
land and/or waters and, if relevant, any access to the land or waters or the way in which any
thing authorised by the future act/s might be done.
You must make this request in writing within the 2 month notification period (see Key Dates).
If consultation is requested there is a further 2 month period for undertaking the requested
consultation, ie. up until 4 months from the notification day.
Part 8 - Contact details
If you have any queries about the notification, please contact –
[insert officer contact details – name, postal address, e-mail, phone number]
Please send any comments about the future act/s or request to be consulted to
[insert officer and address details – name, postal address, e-mail]
Part 9 - Attachments
Map / plan
[List any other attachments]
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment C V1
4
Department of Natural Resources and Mines
Module JAA Attachment D
TEMPLATE - For Native Title Representative Bodies
Notification under section 24JAA of the Commonwealth
Native Title Act 1993 (NTA)
Date: 8 October 2015
Queensland
Government
Module JAA
Section 24JAA
TEMPLATE – For Native Title Representative Bodies
Notification under section 24JAA of the Commonwealth
Native Title Act 1993 (NTA)
By registered post
Part 1 - Key dates
Date of issue by the State:______________________
Notification day: _______________________
(NB. This is 5 calendar days after the issue date of the notification to allow for postage.)
Any comments about the proposed future act/s described in this notification must be provided
in writing by:
_______________ to the person identified in Part 8 below.
(NB. This date is 2 months from the notification day).
Part 2 - Native title parties
Registered native title claimants
[insert details or N/A]
Registered native title body corporate
[insert details or N/A]
Native title representative body
[insert details]
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment D V1
2
Part 3 - Location
The location for the proposed future act/s is described as follows:
Town _______________ ____________________________________
Lot ____________ on Plan __________________
Part of Lot _________ on Plan ________________
Approximate area ________
Tenure __________________________________
A plan / map is attached showing the locality and specific location.
Part 4 - Future act/s
Background
[insert summary of background of project]
Proposed future act/s
The State proposes to carry out the following future act/s:
[insert details of future act/s]
The facilities
The facility/ies identified in the proposed future act/s outlined above fall within the list of
facilities within section 24JAA(3) of the NTA –
(check the relevant boxes)
A - Housing
□
public housing provided for Aboriginal people or Torres Strait Islanders living in, or in
the vicinity of the area;
B - facilities
□
public education facilities for the benefit of Aboriginal people or Torres Strait Islanders
living in, or in the vicinity of the area;
□ public health facilities for the benefit of Aboriginal people or Torres Strait Islanders
living in, or in the vicinity of the area;
□
police facilities for the benefit of Aboriginal people or Torres Strait Islanders living in, or
in the vicinity of the area;
□ emergency facilities for the benefit of Aboriginal people or Torres Strait Islanders living
in, or in the vicinity of the area;
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment D V1
3
C. Staff housing
□
staff housing provided in connection with housing or facilities covered by A or B
above;
D. Other facilities provided in connection with A, B or C above.
□ things listed in section 24KA(2) - ___________________________;
□ sewerage treatment facilities;.
□ things prescribed by regulation - ___________
Part 5 - Indigenous cultural heritage
[Insert details about how Indigenous cultural heritage has been addressed or will be
addressed prior to construction.]
Part 6 - Seeking your comments
The State is seeking your comments on the proposed future act/s described in this
notification.
Please note that this is not a right of veto but an opportunity for you to provide comments
about the proposed future act/s in relation to the registered native title rights and interests.
You must provide any comments in writing within the 2 month notification period (see Part 1 Key Dates).
Part 7 - Contact details
If you have any queries about the notification, please contact –
[insert officer contact details – name, postal address, e-mail, phone number]
Please send any comments about the future act/s or request to be consulted to [insert officer and address details – name, postal address, e-mail]
Part 8 - Attachments
Map / plan
[List any other attachments]
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment D V1
4
GUIDELINES FOR BEST PRACTICE FLEXIBLE AND SUSTAINABLE AGREEMENT MAKING Joint Working Group on Indigenous Land Settlements August 2009 The Joint Working Group on Indigenous Land Settlements acknowledges
that each State and Territory will have different approaches to ce1tain
aspects of agreement-making and implementation, depending upon its
settlement history, legislative framework, programs and policies.
The Working Group also acknowledges that every native title claim and
negotiation is unique.
These guidelines will be interpreted and implemented by State and
TeJTitory government parties consistent with the priorities and policy
approaches of their jurisdictions, and with regard to the paiticular
requirements of each case.
CONTENTS Il'lT~()J:>"C.J<:TJ:()l'l ...............................................•...•.••••••••••......... "'­
THE UNREALISED POTENTIAL OF NATIVE TITLE ............................................................................................................... 4 AUSTRALIAN GOVERNMENTS' COMMITMENT TO A NEW APPROACH TO NATIVE TITLE .................................................... 4 PURPOSE OF THE BEST PRACTICE GUIDE•..•...........................................................................................................•..•..... .4
1 EARLY NEGOTIATION ...................................................... 6 1. PREPARE THOROUGHLY PRIOR TO COMMENCEMENT OF A NEGOTIATION .................................................•.................. 6
2. ENGAGE PROACTIVEL Y TO ENABLE TIMELY AND EFFICIENT OUTCOMES ..........................•..•..•..••..•...•......................... 6
3. DETERMINE \\/HO THE RIGHT PEOPLE FOR COUNTRY ARE EARLY IN THE NEGOTIATION PROCESS ................................ 7 4. CONSULT EFFECTIVELY TO ACHIEVE A SUSTAINABLE AGREEMENT ............................................................................ 7 5. PROMOTE EQUITABLE ENGAGEMENT OF NEGOTIATING PARTIES •.••....•...•..•..•...........•.................................................. 7 6. CONSIDER POTENTIAL BENEFITS PRIOR TO THE COMMENCEt<.1ENT OF A NEGOTIATION ............................................... 7 7. ENGAGE PARTIES WHO HAVE ONGOING RESPONSIBILITIES EARLY ON ......................................................•........••.•...... 8 8. CONSIDER ENGAGING IN A REGIONAL SETTLEMENT ..•...•.•••..•...••..•..•..•..•..•..•.....•...•..................................................... 8 9. ACKNOWLEDGE THAT A CLEAR COMMITMENT TO THE DELIVERY OF APPROPRIATE SUSTAINABLE BENEFITS ENCOURAGES CONSTRUCTIVE NEGOTIATIONS ................................................................................................................. 9 10. ACKNOWLEDGE THAT SUCCESSFUL BROADER LAND SEITLEMENTS BRING BENEFITS TO ALL PARTIES ..................... 9 2 SUBSTANTIVE NEGOTIATION ...................................... 10 11. DEVELOP GOOD WORKING RELATIONSHIPS TO ASSIST IN REACHING AND IMPLEMENTING AGREEMENTS ..............•.. 10 12. EXERCISE CULTURAL AWARENESS AND SENSITIVITY WHEN CONVENING THE NEGOTIATION ...•...•.......................... 10 13. EMPLOY AN INTEREST-BASED APPROACH TO NEGOTIATIONS AND AVOID TECHNICAL OR POSITIONAL BARGAINING .
......................................•..•..•.•...••..•........................................................................................................•..•.•...•••........... 10 14. TAKE A FLEXIBLE APPROACH TO THE NEGOTIATION AND BENEFITS OFFERED ..•..................................................••..• 11 15. ENSURE THAT POSITIONS ON KEY POINTS ARE MADE CLEAR AT THE COMMENCEMENT OF NEGOTIATIONS .............. 11 16. REALITY-TEST THE VIABILITY OF SOLUTIONS AS THEY ARE NEGOTIATED ..............................•.......•..•...•..•..•........... 12 17. ADHERE TO MODEL LITIGANT PRINCIPLES AND CONDUCT NEGOTIATIONS IN GOOD FAITH ................................•..•.. 12 3 IMPLEMENTATION .......................................................... 13 18. ALLOCATE ADEQUATE RESOURCES TO IMPLEMENT THE AGREEMENT ...........................................................•....••... 13 19. ENSURE AGREEMENTS CLEARLY IDENTIFY ROLES AND RESPONSIBILITIES, AND ARE WRITTEN IN PLAIN ENGLISH .. 13 20. ASSESS THE VIABILITY OF IMPLEMENTATION, IN PARTICULAR, THE CAPACITY OF THE PARTIES TO FULFIL
OBLIGATIONS ...............................•.•....•••..•..••..•..•.......•........................................................................................•..•..•... 13 21. ACKNO\VLEDGE THAT SUSTAINABLE BENEFITS INCLUDE THE PROVISION OF RELEVANT CAPACITY BUILDING AND GOVERNANCE FRAMEWORKS ......................................................................................................................................... 13 22. UTILISE LEGAL SAFEGUARDS FOR IMPLEMENT ATION ..............................................•...•..•..•...•..•.............................. 14 23. FOSTER AN ONGOING COMMITMENT TO IMPLEMENTATION .••...•..•..•...•.....•..•.....•..................................................•.• 14 24. REVIEW AGREEMENTS TO ENSURE THE REQUIREMENTS ARE STILL BEING MET ....................................................•.• 14 3
INTRODUCTION The unrealised potential ofnative title
1. The recognition of native title can significantly contribute to the social, cultural, spiritual and
economic wellbeing of Indigenous Australians. As recognised in the Preamble to the Native
Title Act 1993 (NTA), the efficient and effective resolution of native title has the potential to:
• afford Indigenous Australians the 'full recognition and status within the Australian
nation to which hist01y, their prior rights and interests, and their rich and diverse culture
fully entitle them to aspire'
• rectify consequences of past injustices perpeh·ated against Indigenous Australians, and
• provide benefits to the broader Australian community, including the advancement of
reconciliation and the creation of certainty of land tenure.
2. However, this potential has not been fully realised. The system has become constrained by
technical and inflexible legal practices and processes.
Australian Govemments' commitment to a new approach to native title
3. At the Native Title Ministers' Meeting on 18 July 2008, Australian Governments acknowledged
that the backlog ofundetennined native title applications, and the time it can take to resolve
claims, is unsatisfactmy.
4. Governments recognised that real advances in native title require all parties to adjust their
attitudes and expectations. They committed to work proactively in their jurisdictions to resolve
native title through non-technical and flexible approaches. They agreed:
• to develop innovative policy options for progressing native title through interest-based,
negotiated settlements where possible
• the native title system can facilitate broader settlement packages that offer a range of real
opp01tunities and practical outcomes for Indigenous Australians
• to establish and pursue jurisdiction-specific targets to benchmark progress, and
• to meet regularly to assess progress, share experiences and to develop a strategic
approach for the effective resolution of native title.
Pmpose ofthe Best Practice Guide
5. This Best Practice Guide is designed to provide practical guidance for government pa1ties on the
behaviours, attitudes and practices that can achieve flexible, broad and efficient resolutions of
native title. It identifies a range of conunon factors indicative of successful broader land
settlements that may be applied or adapted to the circumstances of particular settlements.
6. This Guide complements Mediation Guidelines: Guidelines for the behaviour ofparties and their representatives in mediation in the National Native Title Tribunal. 7. Broader land settlements to which the guidelines could apply include:
• native title settlements ( eg consent detenninations and Indigenous Land Use Agreements
(ILUAs))
• non-native title settlements, and
4
•
settlements which include a mix of both native title and non-native title outcomes.
8. These Guidelines are divided into three pruis, which reflect distinct phases of broader land
settlement negotiations.
9. Pa1i One provides guidance on how to adequately prepare for the early stages of a negotiation.
These guidelines encourage government parties to adopt behaviours, attitudes and practices
early in the negotiation process that will ensure agreements deliver outcomes attuned to the
needs and interests of all pruiies.
10. Part Two provides guidance on the substantive stage of the negotiation process. These
guidelines encourage government pruiies to adopt an interest-based approach to negotiations, to
remain flexible as to the potential benefits that might be provided and to act in good faith
throughout the negotiation.
11. Pa1i Three provides guidance on the successful implementation of agreements, so that
appropriate corporate and governance frruneworks are in place to ensure the delive1y of
sustainable benefits into the future.
5
1 EARLY NEGOTIATION 12. Prior to the commencement of negotiations, government patties should endeavour to:
a. ensure all parties are authorised to commence negotiations
b. identify and complete necessary research
c. outline outcomes sought so that relevant policy parameters can be defined and
understood by all patties
d. agree on the broad strncture, time frames, parameters and pmpose of the negotiations
e. agree on roles and responsibilities of all patties, and
f. seek to assist with the resolution of inter and intra-Indigenous conflict, where possible
and appropriate.
13. The level ofresearch to be completed will depend on the nature of the negotiation and the
outcomes sought. However, government patties should identify any research that is necessary
to supp01t the negotiation and ensure it is completed before the commencement of negotiations.
14. In some circumstances tenure material will inform the negotiation process, pa1ticulat·ly in
circumstances where a native title outcome is not being sought. Where possible, government
pa1ties should be prepared to share tenure inf01mation and any other inf01mation that may assist
a negotiation, subject to confidentiality and privacy requirements. In some cases, tenure
information could shape the negotiations, rather than connection reports or connection evidence.
15. Government patties should also have done some preparation to know what programs or benefits
might be able to be offered and be aware of what benefits they can commit to (see Guideline 6
for examples of potential benefits).
I· 2. Eii.g'dgeproactifelj, toeiiable(inlely 'd11defficient.outcomes
16. Two issues that can contr·ibute to significant delays in resolving a claim are overlapping claims
and connection evidence.
17. Where appropriate, government parties should proactively engage to do what they can to resolve
overlaps that occur in negotiations. It is not equitable to deny negotiations to particular
Indigenous groups simply because their claim is relatively difficult due to overlapping claims.
Nor does it provide ce1tainty for other potential land users.
18. Overlaps should be considered on a case by case basis. For example, some marginal or
unsubstantiated overlaps can be more practically dealt with by excising part of the claim subject
to the overlap, consenting to a pattial dete1mination where there is no overlap, or agreeing to a
degree of shat·ed rights in the overlapping area.
19. For more substantive overlaps, tools such as land summits, regional settlements and targeted
mediation and litigation could be used.
20. The production of connection and tenure information early on may assist to focus the
negotiations t1u·ough early assessment of the magnitude of overlaps, the degree to which native
title has already been extinguished, and claim boundaries.
21. Government patties should provide inf01mation in their possession where possible, including:
Pat1 l - Early Negotiation
6
a. relevant tenure material, and
b. access to any relevant connection material (taking into account confidentiality
requirements).
22. Where appropriate, government parties should also engage with all other agencies (for example,
local goverrunent) that might be able to contribute to the process and be proactive in accessing
and disseminating all relevant information.
23. Government paiiies need to be satisfied they are dealing with the right people for countly before
commencing negotiations for a broader land settlement. A focus on interest-based negotiations
with the right people for count1y will also assist all paiiies to establish the strengths and
weaknesses of the underlying native title claim.
24. Any one of the following factors can assist in establishing whether an Indigenous party represents the right people for country: a. existence of a registered claim or ILUA with no overlaps
b. recognition by the relevant Native Title Representative Bodies (NTRBs) that the group
comprises the 'right people'
c. demonst1·ated genealogical affiliation to ancestors who occupied the area at settlement
d. evidence of past dealings with State and Ten-itory government over the pa1iicular area,
and
e. evidence that shows the group's traditional and contempora1y link to the land, including
access, responsibility for caring for country, impo1iant sites, traditional laws and
activities.
I4.
Co'ii'sultfffe.;tiveiyto d~J,iev~ asustaint{ble agreem~11t
25. A settlement is more likely to be successful when it is understood and accepted by the parties and the broader community affected by the settlement. Tmst, ownership and conunitlnent is built and maintained by inclusive decision making and transparency. 26. NTRBs, or other paiiies representing claimants, have a crucial role in ensuring that all Indigenous paiiies are consulted and have the opp01iunity to approve the content of the negotiated agreements. 27. Government paiiies should promote the effective engagement of all parties involved in the
negotiation of an agreement. Where appropriate, government parties should encourage the
appointment of experienced negotiators and supp01i teams that have a good understanding of
the interests they are representing and how those interests could be best served.
28. As noted in Guideline One, government pa1iies should spend time researching and considering
the nature of the benefits they can possibly provide. This will ensure that when substantive
negotiations commence parties have a cleai· idea of the parameters within which agreement can
be found.
Part 1 - Early Negotiation
7
29. Sustainable benefits can be financial or non-financial and could include, but are not limited to:
a. land
b. employment, education, mentorship and training opportunities
c. business start-up assistance or provision of an established business
d. provision of longer term assets and investments
e. licences to hunt, fish, camp or organise cultural events in the agreement area
f. co-operative management an-angements, for example, of a national park
g. ongoing commitment to collaborate on future projects
h. timed funding for the relevant Prescribed Body Co1porate (PBC), and
1. multi-lateral land access agreements between the Commonwealth, State and local
governments and third parties.
30. In addition to early consideration of the type of benefits to be provided, government parties
should remain open and flexible throughout negotiations. A range of benefits, tailored to
concerns and interests will enhance commitments to long term relationships and the negotiation
of agreements.
7; E11gagepizrties· who liiz11e oitgoinfresponsibilities early oit
31. Those who will have responsibility to implement an agreement should be involved in its
negotiation so that they can infmm, shape and ultimately own the process of implementation.
This is particularly the case for government parties where it is likely the government negotiators
will not themselves be providing all of the benefits.
I·•
s: t:Jns{der. engagiiifi11a Ftgio,ia(seittement.>
32. In some circumstances, it might be appropriate to use a settlement on a regional basis to reach
an agreement. A regional settlement may involve claims brought by different claim groups in
the same region, or an amalgamation of claims by the same claim group within a region.
33. Regional settlements do not necessarily require the collective resolution of every issue in every
claim within particular regions. For example, claims could involve collaboration on specific
aspects such as research into, or negotiation or mediation of common issues, and leave any
issues of substantial difference, such as the actual deten-nination of native title, for resolution on
an individual claim basis. In some circumstances, however, it may be possible to achieve
substantive resolution of all claims within a region through a smaller number of sub-regional
processes, or possibly a single process.
34. Regional resolutions may assist in overcoming specific issues, including overlaps and cross-jmisdictional claims. For example, regional settlements offer the possibility of negotiating shared rights or withdrawal of one group, by offering practical benefits in lieu of continuing to assert native title rights in the overlapping area. 35. In dete1mining the appropriateness of a cross-jurisdictional approach, parties should engage early in the negotiation process and look for synergies between: a. the types of tenure and legislative schemes involved
b. policies and programs ofrespective governments
Part 1 - Early Negotiation
8
c. the resources and views ofrespective NTRBs, and
d. the willingness or capacity of non-government and non-Indigenous parties to be involved
in cross-jmisdictional negotiations.
1~l~1'iztiii{~9frJik~~~tJ[slti··· .
Zti
'
i
·
~~ft~~f,f;tf~;r:~,i
t
~s{fi
'
f
;,{~ffJl
!
J<f!/t~J.~e,.
.
rd,i
\
~~!i
~
~Ff.WJ,'
p
~ti
J
Jr
encourages· co11su-uct1v.e, 11egotiatio11s ;
<
36. Government parties should demonstrate a clear intention and capacity to provide appropriate
sustainable benefits to engender the goodwill necessary for Indigenous parties to fully engage in
the negotiating process.
37. Government parties should recognise and acknowledge that all stakeholders can benefit from an
agreed broader land settlement. This can contribute to improved relationships and a shared
commitment to achieving high quality outcomes.
Part I - Early Negotiation
9
2 SUBSTANTIVE NEGOTIATION 38. Sustainable outcomes can only be achieved through an ongoing relationship based on liust, respect and understanding. 39. To develop liust, parties must have a strong commitment to the settlement and delivery of agreed sustainable benefits. Another important requirement in developing trust can be the protection of confidentiality. 40. Any person with specific responsibilities under the agreement should be involved in the
negotiations so that they can info1m, shape and ultimately own the process of implementation.
This will facilitate an ongoing relationship and promote commitment to the implementation of
the agreement.
I·· 12. Exercise cuftur~lawa'i-eness and s2nsiii~ity wltknEoiivening tlti, iiegoiiaiion
41. Government parties should take the time to develop awareness of the most appropriate and
effective ways to communicate with the Indigenous paiiies involved. This includes creating an
alinosphere in which Indigenous pa1iies feel comfo1iable discussing their concerns. It also
includes observing cultural rules regarding who can discuss ce1iain cultural matters, and may
even include awareness of different understandings of the meaning of terms.
42. An important aspect of developing good relationships is for all non-Indigenous pa1iies to have
an understanding of what Indigenous pa1iies are being asked to do, to potentially 'give up' and
to think creatively about what measures can be implemented to assist Indigenous paiiies to
maintain community and culture.
43. Government pa1iies should consider using skilled interpreters to facilitate claimants'
paiiicipation in negotiations, where English is a second language.
44. Governments recognise the impo1iance of allowing sufficient time for Indigenous methods of
decision-making .
.{{ ~rng1~ra11 !!'''!1'.i!Sf-~ase:d appr~acJ.to 11eg~tia,ti'!ltfl: '!!}4 ifV'!idte,clJ11ical.orp(!~itio11al
bargaitiiiig
·
··
·
··
·
·
45. An interest-based approach should be employed in negotiations with the aim of providing
benefits based upon the aspirations of the paiiies, as opposed to naJTow and technical definitions
of what may constitute native title rights. Government paiiies should be open to considering
and initiating innovative solutions, rather than holding a fixed bargaining position.
46. Government paiiies should also be flexible in resolving issues that arise during negotiations,
including being prepared to use independent expe1is to resolve issues.
47. This approach will allow more flexibility for all pa1iies and provide increased incentives to
reach agreement.
48. Govenunent paiiies should identify interests and the best way to satisfy those interests as early
as possible. Governments should also be clear as to why they and other paiiies hold paiiicular
interests and identify workable solutions that could meet those interests.
Part 2 - Substantive Negotiation
10
49. An interest-based approach should also be used to identify any potential areas of inter- and intra-Indigenous conflict, and whether a regional settlement would be appropriate in areas · subject to various competing Indigenous interests. 50. Government parties should also have an appreciation of the interests they represent in
comparison with other negotiation parties. If their interests are less extensive than other
parties, this should be reflected in the way they negotiate and the issues they become involved
m.
51. Government parties should endeavour to demonstrate how a negotiated settlement can better serve the interests of native title parties through a benefits package that meets the practical needs and aspirations of native title parties. 52. Where government parties consider a formal native title detennination is required to meet their
needs, they should recognise that there may be differing but legitimate views regarding the
evidence required to reach a positive detennination of native title under the NTA.
53. In considering the evidence available, government parties should therefore ensure that they do
not become entrenched in unyielding positions on the particular evidence they consider is
required, and carefully consider whether their view of the evidence is overly burdensome or
unnecessary given the requirements of the NTA.
1·
14,. Take aflexible
approach to the negotiation iuul 1Je,iejits.offered
54. An interest-based approach requires flexibility on the part of government parties, in regard to
the process of the negotiation and consideration of:
a. the range of benefits offered (both monetary and non-monetary)
b. material presented, and
c. policy positions and process (eg some issues might be better resolved at a regional level,
while, other issues might be better dealt with separately with particular Indigenous
parties).
55. Government parties should have the flexibility to, within reason and legislative parameters,
adapt the benefits on offer to match the interests oflndigenous parties. This may involve, for
example, being flexible in how government programs are provided, including eligibility
requirements.
56. Clarifying the position of government paiiies early in the negotiation will ensure expectations
are managed and time and en_ergy is not dive1ied to 1nisguided targets. To achieve this,
government pa1iies must identify issues properly and explore options. Government parties
should ensure that info1mation about possible benefits is conveyed to the parties at the earliest
possible opp01iunity.
57. The focus should be on working towards mutually beneficial and sustainable solutions. While it
may not always be possible to have a solution in line with all Indigenous paiiies' aspirations,
government paiiies should seek positive solutions that benefit claimants.
Part 2 - Substantive Negotiation
11
I
58. Early in negotiations, before parties commit to the agreement, government parties should ensure
that the benefits and obligations being offered are practical and sustainable.
59. Where possible and appropriate, Government parties should evaluate the agreements against
their objectives and establish appropriate processes such as schedules of ongoing commitments
and periodic review meetings to reality test the options. A realistic assessment of whether the
agreed benefits and obligations can be can-ied out is critical to ensuring effective
implementation.
60. Government parties should adhere to model litigant principles, where negotiating an agreement
or litigating a claim. This requires government parties to act honestly and fairly, including:
a. not causing unnecessary delay
b. assessing potential liability/likelihood of success early and settling legitimate claims
without litigation
c. impartiality and consistency in handling claims
d. engaging in alternative dispute resolution where possible
e. not relying on technical defences unless it would result in prejudice
f. not taking advantage of a claimant who lacks resources, and
g. Government leadership should influence the behaviour of other pa1iies in this regard.
61. It is also imperative that government parties act in good faith at all stages throughout the
negotiation. While these guidelines supp01i good faith negotiations, it is also important that
government paiiies:
a. conduct themselves with integrity, honesty, cooperation and comiesy during negotiations
b. comply with agreed negotiation procedures including attendance at meetings
c. make a genuine attempt to reach agreement
d. disclose relevant inf01mation as appropriate for the purposes of the negotiations
e. comply with agreed timefi:aines and ensure the timely production of relevant mate1ials,
and
f. effectively and efficiently paiiicipate in mediation through adequate prepai·ation and a
clear understanding of the issues.
62. The obligation to act in good faith does not require goverrunent parties to act in the interests of
the other party at the expense of its own interests. In recognising that not all disputes can be
successfully mediated, these p1fociples do not require paiiies to reach an agreement.
Part 2 - Substantive Negotiation
12
3 IMPLEMENTATION 63. Delivering sustainable benefits requires the allocation of appropriate resources and cooperation
from all pruiies. Government pruiies should ensure there are adequate resources so that longer
term commitments ru·e met.
64. A clear, plain English agreement is an important aspect in assisting present and future
generations to understand and implement the agreement.
65. Agreements should be drafted so that:
a. they ru·e self contained and self evident and able to be used by people who were not
necessarily present or prui of negotiations
b. the roles and responsibilities of each pa1iy are clearly set out, including where
approp1iate schedules of roles and responsibilities in relation to the provision of
pruiiculru· benefits, and
c. timelines and timeframes for implementation of particular aspects are included, and
review and monitoring mechanisms are incorporated, including timelines for review.
20.. 1ft~~~ thl}l;iabi[jty ofiniple,11fri1ia"'Qlt; illjJ,articiilar,4!'e"•cap~city•ofth_e parties_ to fulfil·.
o/J/igatiollS
66. A realistic assessment of whether the agreed benefits can be provided over the life of the
agreement is critical to ensuring effective implementation. Government parties should
determine before they commit to the agreement that the benefits and obligations are practicable
and suitable. Gove1mnent pruiies should also consider capacity issues as a prui of the agreement.
fl:
}s!f~o1:v{ed~e!'!~frf st~i11ab1~ bei,efits, i11c1ut1/tli.e
provision iJt relev9,1t capacJty oui[di11g
and gover11ci1i"cefran1eworks . ..
. .
. . .
.
67. A sustainable benefit is not just a lru·ge lump sum or asset. It is a benefit that will deliver
benefits now and in the future. When negotiating sustainable benefits parties should
acknowledge that some capacity building or governance training may need to be included as
pa1i of those benefits.
68. Government paiiies should consider with Indigenous pruiies whether new skills or expe1i advice
will be necessaiy to realise the full potential of sustainable benefits and address this in the tenns
of the agreement where approp1iate. For example, it is common that Indigenous pa1iies may
aspire to owning businesses or utilising revenue streams from lump sum cash payments. Where
this is the case it may be necessruy to investigate approp1iate corporate structures and have
external expe1i financial advice, or to provide small business management training.
69. In many cases, the most appropriate fonn of assistance regarding sustainable benefits, capacity
building and governance frameworks will be to broker the involvement of government agencies
charged with relevant responsibilities, including the development and implementation of
national and jmisdiction-specific Indigenous economic development strategies.
Part 3 - Implementation
13
70. In order for settlements to deliver sustainable benefits, appropriate corporate structures need to
be adopted by Indigenous parties to assist them to deal effectively with issues including tax,
governance and accountability.
71. Where appropriate, Government parties should be prepared to provide advice on shuctures that
are acceptable to them in the context of a particular settlement. This will allow the stmcture of
the agreement to be considered early in negotiations.
I .22.,: utitiselegatsafegua~ds.for:iiiiJ,.tem;'eniiitibn.. ·•·
11
• .•· .•.
72. Legal devices such as caveats and contt·actual te1ms specifying evaluation and monitoring
requirements can guarantee land is dealt with according to the terms of the agreement.
23.
Fosie,:'d,tongoing c'om/nti111ent t'Jlmplenieiti'dtioi1, ..
73. There should be a recognition and understanding, at the staii of the negotiations, of the ongoing
commitment necessary to implementation over the life of the agreement. This also ensures the
relevant resources and people will be available at the end of negotiations to implement that
commitment.
24. Review agreeiiieiitsio ensure the requireiiiiiiitsai:e ·s.till·beiiiginet.
74. Where relevant, it is imp01iant that review mechanisms are built into agreements to ensure the
objectives of the agreement are met.
Part 3 - Implementation
14
Department of Natural Resources and Mines
Module JAA Attachment E Letter Templates For Consultation
Date: 8 October 2015
Queensland
Government
Module JAA
Section 24JAA
Template A – Seeking meeting – Public housing
Dear
Consultation under section 24JAA of the Commonwealth Native Title Act 1993
Thank you for your letter dated xxxx in which you provided comments and requested to be
consulted about xxxx [insert description of future act].
The State would like to commence the consultation process with you as soon as possible.
In that regard, we would like to arrange to meet with you at xxxx to discuss the proposed future
act, in particular, to discuss –
(a) ways of minimising the impact of the future act on your registered native title rights and
interests; and
(b) the access to the future act area; and
(c) the way in which the future act may be done.
If possible, the State is seeking to hold the meeting within a month’s time. Please respond as soon as possible, as the date for the consultation period to end is xxxx. Translator?
Catering/travel/etc????
Could you please contact xxxx on xxxx, to arrange a meeting time.
Thank you. Yours sincerely xxxx
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment E V1
2
Template B – Seeking meeting – Other government infrastructure
Dear
Consultation under section 24JAA of the Commonwealth Native Title Act 1993
Thank you for your letter dated xxxx in which you provided comments and requested to be
consulted about xxxx [insert description of future act].
The State would like to commence the consultation process with you as soon as possible.
In that regard, we would like to arrange to meet with you at xxxx to discuss the proposed future
act, in particular, to discuss –
(a) ways of minimising the impact of the future act on your registered native title rights and
interests; and
(b) the access to the future act area; and
(c) the way in which the future act may be done.
As part of the consultation process, the State is also seeking to negotiate with you and reach
agreement about the things listed above, including cultural heritage, and to identify other needs
for which the State may be able to provide some assistance.
If possible, the State is seeking to hold the meeting within a month’s time. Please respond as
soon as possible, as the date for the consultation period to end is xxxx. Translator?
Catering/travel/etc????
Could you please contact xxxx on xxxx, to arrange a meeting time.
Thank you. Yours sincerely xxxx
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment E V1
3
Template C – Advising outcome of consultation
Dear
Consultation under section 24JAA of the Commonwealth Native Title Act 1993
Thank you for meeting with officers from the Department of xxxx, as part of the consultation
process under section 24JAA of the Commonwealth Native Title Act 1993 (NTA) for xxxx [insert
description of future act].
Based upon the discussion at the meeting and comments you previously provided, I note that
xxx [insert a summary of key concerns].
I have taken into account all relevant comments and concerns raised. The Department has addressed xxxx (insert how you have addressed all or some of their
concerns. If no concerns could be addressed advise why).
The Department now intends to xxxx (insert what you are going to do, eg. proceed with future
act, etc) Please do not hesitate to contact xxxx on xxxx, if you have any queries in relation to this matter.
Thank you. Yours sincerely
xxxx
* Where appropriate, insert the following towards the end of the letter - Could you please
respond by way of letter to confirm that you have been consulted. By providing the letter, the
consultation period is completed and allows the State to provide the report to the Commonwealth
Minister at an earlier stage.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment E V1
4
Department of Natural Resources and Mines
Module JAA Attachment F
Report by the State of Queensland under section
24JAA of the Commonwealth Native Title Act 1993
Date: 8 October 2015
Queensland
Government
Module JAA
Section 24JAA
Report by the State of Queensland under section 24JAA
of the Commonwealth Native Title Act 1993
This report is provided under section 24JAA(16) of the Commonwealth Native Title Act 1993
(NTA).
This report was completed on [insert date].
[Insert either –
‘As there are no registered native title bodies corporate or registered native title
claimants, this report is provided after the completion of the 2 month consultation period.’
OR
‘As no requests to be consulted were made within the 2 month consultation period, this
report is provided after the completion of the 2 month consultation period.’
OR
‘As there was a request/s to be consulted within the 2 month consultation period, this
report is provided after completion of the 4 month consultation period.’
OR
‘As there was a request/s to be consulted within the 2 month consultation period and the
native title party confirmed in writing (attached) that they were consulted, this report is
provided before the completion of the 4 month consultation period.’]
The details of the notification and/or consultation process undertaken by the State of
Queensland is set out in the table below.
If you have any queries in relation to the information in this report, please contact –
[insert name, title, postal address, phone, fax and e-mail details]
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment F V1
2
Indigenous community
The proposed future act/s will take place within [insert name of Indigenous community].
The current tenure is [insert type of tenure] falling within the list of tenures in section
24JAA(1)(b) of the NTA.
Proposed future act/s
The proposed future act/s is/are –
[insert details of the proposed future act/s, eg. registration of a trustee lease for… Use
the details in Part 4 of the Notification]
The proposed future act/s meet/s the requirements in sections 24JA(1)(c) and (3) of the NTA.
The relevant native title parties
The relevant native title parties for the area to be covered by the future act/s are
Registered native title body corporate
[Insert name of body corporate, claim name, QUD and QC number] or [Insert ‘Not
Applicable’]
Registered native title claimants
[Insert name of each registered claimant, claim name, QUD and QC number] or [Insert
‘Not Applicable’]
Native title representative body
[Insert name of representative body]
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment F V1
3
Notification (see copy attached)
Date of issue
The notification was issued by the State on [insert date of issue]
Notification day
To address the requirement in section 24JAA(12) of the NTA, the notification day was postdated to 5 calendar days after the date of issue. The notification day was [insert notification
day date].
Required statements
The notification contains statements that comments and requests to be consulted must be
made within 2 months from the notification day, as required by section 24JAA(11) of the NTA.
Opportunity to comment
As part of the notification/s, comments about the proposed future act/s were requested to be
provided in writing by [insert date].
Comments received
[Insert either –
‘No comments were received from the notified parties in the required time period.’
OR
“Comments were received from the notified parties in the required time period.’ Insert
a summary of the comments received and how you addressed those comments.
Attach copies of comments and any response provided.]
Consultation
[Insert either –
‘As there were no registered native title bodies corporate or registered native title
claimants, there was no consultation required to be undertaken – section 24JAA(13) of
the NTA.’
OR
‘In the notification/s, requests to be consulted about the proposed future act/s were to
be provided in writing by [insert date]. However, no requests for consultation were
received in the required time period.’
OR
‘In the notification/s, requests to be consulted about the proposed future act/s were to
be provided in writing by [insert date]. A request/s for consultation was made by
[insert name/s of native title party] on [insert date]. This request/s was made within the
required time period.
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment F V1
4
Consultation process
Consultation was undertaken with [insert name/s of native title party] about ways to
minimise the impact of the future act/s on their registered native title rights and
interests, and, where relevant, any access to the area covered by the future act/s or the
way in which the future act/s might be done – section 24JAA(14) of the NTA.
Consultation followed the process contained in the State’s native title policy – [insert
either – Module JAA – Attachment A - Consultation process guideline for public
housing if dealing involves public housing OR Module JAA – Attachment B –
Consultation process guideline for other government infrastructure if dealing involves
non-public housing infrastructure].
Consultation commenced on [insert date] and was concluded on [insert date].
[Insert details about the consultation process, including how and where it occurred,
who attended, what was discussed, particular key issues raised, the fact that an
infrastructure agreement was reached, etc]’
Outcome of consultation
Insert either –
‘The consultation process resulted in an agreed outcome about the proposed future
act/s.’
OR
‘The consultation process did not result in an agreed outcome. The native title party
disagrees with the proposed future act/s proceeding because –
[Insert details about those grounds]
After considering the issues raised during consultation, the State will proceed with the
proposed future act/s.’
Attachment/s
Copy of notification
Copy of comments received [delete if not applicable]
Copy of any response to comments [delete if not applicable]
[List any other attachments]
Department of Natural Resources and Mines, 2015
Chapter 5: Future Acts
Native Title Work Procedures – Module JAA Attachment F V1
5
Process for native title requirements for public housing and other
government infrastructure on Indigenous land
State agency carries out native title assessment in accordance with
State Government Native Title Work Procedures
Native title assessed as
extinguished
Proceed
No
Native title may or does
continue to exist
Yes
Proposed dealing falls
within section 24JAA,
NTA
Native title determined to
not exist
That subject to the decision of
the Executive Director of the
Remote Indigenous Land and
Infrastructure Program Office,
Department of Communities,
about the prospects of obtaining
an ILUA within the timeframes
required to meet the State’s
obligations under the National
Partnership Agreement on
Remote Indigenous Housing,
commence section 24JAA
process by issue of notice.
Proceed in
accordance
with ILUA
Yes
No
Native title surrendered
under a registered ILUA
Yes
Proceed
once 24JAA
process
completed.
Proposed dealing is
covered by an existing
registered ILUA
No
Advise the Program Office,
before proceeding under
Module JAA.
Does the proposed dealing
involve the provision of
public housing?
Yes
No
Unless dealing falls
within section 24JA, an
ILUA is required to be
negotiated and
registered for the
government
infrastructure.
Is in principle
agreement
reached within
6 months?
Yes
Proceed
under
registered
ILUA.
Commence section 24JAA
process by issue of notice.
No
Is a request for
consultation made?
Matter referred to the Remote
Indigenous Land and Infrastructure
Program Office. Best endeavours
used to review negotiations within 21
days. Refers matter to next meeting of
the Program Office Board.
Yes
Use enhanced
consultation process,
seeking to reach
agreement. Template
Infrastructure Agreement
No
Is agreement reached
within consultation
period?
Yes
Program Office Board
may either approve to
continue ILUA
negotiations or refer to
PMC.
If referred to PMC, PMC
can make directions as it
considers appropriate
including approval to
compulsorily acquire
native title.
Sign agreement.
Note: This process does not preclude
an agency deciding in the first
instance to proceed by way of a
registered Indigenous land use
agreement.
Proceed under 24JAA process
and in accordance with
commitments under the
Infrastructure Agreement
Proceed in accordance
with PMC directions, e.g.
compulsory acquisition
________________________________________________________
[Insert Indigenous community name]
SECTION 24JAA GOVERNMENT INFRASTRUCTURE AGREEMENT [Insert type of Government Infrastructure]
This Agreement is in two Parts.
Part A: Particular Terms - contains the terms which are specific to this
Agreement.
Part B: General Terms - contains the standard terms forming part of this
Agreement.
Document No: 3670199
RECITALS A.
The State intends [Insert if required: to enter into a Lease with the Trustee of
the Lease Area] to construct, operate, use, maintain and/or repair the
Government Infrastructure on the Agreement Area for the benefit of
Indigenous people living on, or in the vicinity of, the Agreement Area. To the
extent those acts are Future Acts the Non-Extinguishment Principle applies
pursuant to section 24JAA of the NTA. Benefits provided under this
Agreement do not constitute native title compensation for the purposes of the
NTA.
B.
[Note: insert this recital if there is a Registered Native Title Body Corporate for
any part of the Agreement Area, otherwise this recital should be deleted]
[Insert: party name] is the Registered Native Title Body Corporate for the
[Insert either: Agreement Area/part of the Agreement Area] and holds Native
Title [Insert: in trust/as agent] for the [Insert: name] People.
C.
[Note: Insert this recital if there is/are Registered Native Title Claimant(s) for
any part of the Agreement Area] [Insert: party names] are the Registered
Native Title Claimant(s) on their own behalf and on behalf of the [Insert: name
of Native Title Claim Group(s)] for the [Insert: Agreement Area/part of the
Agreement Area].
D.
[Note: Insert this recital if the Trustee is a party to the agreement] The Trustee
is the trustee for the Agreement Area.
E.
In relation to the Government Infrastructure Acts the State, in accordance with
section 24JAA of the NTA:
(i) gave the Notice to [Insert as necessary: Registered Native Title
Claimants/Registered Native Title Body Corporate/Representative Body]
on [Insert details] in accordance with sections 24JAA(10)–(12) of the NTA;
(ii) the [Insert as relevant: Registered Native Title Body Corporate and/or
Registered Native Title Claimant] requested in writing to be consulted
about the doing of the Government Infrastructure Acts on [Insert date];
and
(iii) pursuant to that request a Consultation Meeting(s) [Insert as appropriate:
was/were] held on [Insert details].
F.
This Agreement has been entered into as a result of:
(i) the Consultation Meeting between the State and [Insert as necessary:
Registered Native Title Claimants/Registered Native Title Body
Corporate]; and
(ii) [Insert if appropriate] further consultation subsequent to the Consultation
Meeting between the parties to this Agreement.
Page 2 of 27
Document No: 3670199
G.
[Insert this recital if cultural heritage forms part of the agreement] This
Agreement is also intended to address the duty of care under the [Insert
either: ACHA/TSICHA] in relation to Cultural Heritage in the Agreement Area.
PART A: PARTICULAR TERMS
1.
Parties
State of Queensland acting through the [Insert the relevant State
Department or Agency] (“State”)
Street Address:
________________________________ Postal Address:
________________________________ Facsimile:
__________________
Telephone:
__________________
Email:
__________________
Registered Native Title Body Corporate:
_______________________________________________________
[Insert the name of the Registered Native Title Body Corporate for the Agreement Area ] RNTBC ICN:
_____________________ Street Address:
________________________________ Postal Address:
________________________________ Facsimile:
__________________
Telephone:
__________________
Email:
__________________
Page 3 of 27
Document No: 3670199
Registered Native Title Claimants:
_________________________________________________________
[Insert the names of the individual Registered Native Title Claimants] on their own behalf and on behalf of ____________________________ [Insert the name of the Native Title Claim Group]
Street Address:
________________________________ Postal Address:
________________________________ Facsimile:
__________________
Telephone:
__________________
Email:
__________________
Trustee:
_______________________________________________ [Insert the Trustee’s name] ABN/ACN: __________________________________________
Street Address:
________________________________ Postal Address:
________________________________ Facsimile:
__________________
Telephone:
__________________
Email:
__________________
Page 4 of 27
Document No: 3670199
2.
Agreement Area
[Note: Insert written description of the Agreement Area, e.g. a ‘lot on plan’
description or part thereof, street address etc]
_________________________________________________________
as indicated on the map(s) and as described in the Notice attached at
Schedule 2.
3.
Government Infrastructure
[Note: mark with ‘X’ whichever of the following applies and insert the s24JAA type of
facility, eg school, nurses quarters, water pipeline, etc]
Public education facilities - ________________________________
Public health facilities- ___________________________________
Police facilities- _________________________________________
Emergency facilities - ____________________________________
Staff housing provided in connection with any of the above
facilities - ______________________________________________
A facility listed under section 24KA(2) provided in connection with any
of the above facilities -____________________________________
______________________________________________________
Sewerage treatment facility provided in connection with any of the
above facilities
See the Notice attached at Schedule 2 for any further information in
regard to the Government Infrastructure.
4.
Community Benefits
[Note: Mark with ‘X’ whichever of the following two statements applies]
Community Benefits are provided for under this Agreement
(see Part B, clause 4 and Schedule 4)
Community benefits are NOT provided for under this
Agreement.
Page 5 of 27
Document No: 3670199
5.
Cultural Heritage
[Note: Mark with ‘X’ whichever of the following two statements applies]
This agreement is NOT ‘another agreement’ for the purposes of the [Insert
either: ACHA/TSICHA].
This agreement is ‘another agreement’ for the purposes of the [Insert either:
ACHA/TSICHA].
Aboriginal / Torres Strait Islander Party:
_______________________________________________________
[Insert name of Aboriginal / Torres Strait Islander Party for the purposes of Part B,
clause 6.1]
Page 6 of 27
Document No: 3670199
Executed as a deed by the parties on the dates appearing below.
[Note: The parties must ensure that they execute this Agreement validly and in
accordance with any rules of association, constitution and any applicable legislation
including the Local Government Act 2009 (Qld), the Aboriginal Land Regulations
1991 (Qld) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006
(Cth). The Trustee should have a lawyer amend the execution clause below to meet
those requirements]
State of Queensland [Note: execution by officer with delegated authority to sign on
behalf of the State]
SIGNED SEALED and DELIVERED for and
)
)
on behalf of the STATE OF QUEENSLAND
)
)
by
)
)
this
day of )
2011
)
)
in the presence of:
)
)
…………………………………………………… )
(Signature of Witness)
)
)
…………………………………………………… )
(Name of Witness)
)
……………………………………
(Signature)
Registered Native Title Body Corporate
THE COMMON SEAL of [Insert Registered Native
Title Body Corporate]
was duly affixed in accordance with its Rules
this ________ day of _________________
by_________________________________
(Print name)
a Chairperson/Vice Chairperson/Secretary/
Treasurer
and by______________________________
(Print name)
a Chairperson/Vice Chairperson/Secretary/
Treasurer
Page 7 of 27
Document No: 3670199
(Signature)
(Signature)
Registered Native Title Claimants
Signed by [Insert Name] on his/her own behalf
and on behalf of the Native Title Claim Group
___________________
(Signature)
this _______ day of ___________________
in the presence of: _____________________
Witness: ______________________________
(Print name)
Signed by [Insert Name] on his/her own behalf
and on behalf of the Native Title Claim Group
___________________
(Witness’ signature)
___________________
(Signature)
this _______ day of ___________________
in the presence of: _____________________
Witness: ______________________________
(Print name)
Signed by [Insert Name] on his/her own behalf
and on behalf of the Native Title Claim Group
___________________
(Witness’ signature)
___________________
(Signature)
this _______ day of ___________________
in the presence of: _____________________
Witness: ______________________________
(Print name)
Signed by [Insert Name] on his/her own behalf
and on behalf of the Native Title Claim Group
___________________
(Witness’ signature)
___________________
(Signature)
this _______ day of ___________________
in the presence of: _____________________
Witness: ______________________________
(Print name)
Page 8 of 27
Document No: 3670199
___________________
(Witness’ signature)
Trustee
THE COMMON SEAL of [Insert Trustee Name and
ABN / ACN]
was duly affixed in accordance with its Rules
this ________ day of __________________
by_________________________________
(Print name)
a Chairperson/Vice Chairperson/Secretary/ Treasurer
____________________
(Signature)
and by______________________________
(Print name)
a Chairperson/Vice Chairperson/Secretary/
Treasurer
_____________________
(Signature)
Page 9 of 27
Document No: 3670199
PART B: GENERAL TERMS 1.
Definitions and Interpretations
The definitions and rules for interpretation of this Agreement are contained in
Schedule 1.
2.
Government Infrastructure
The State will carry out the Government Infrastructure Acts on the Agreement
Area in accordance with this Agreement.
3.
Agreed Issues and Protocols
The State will carry out the Government Infrastructure Acts on the Agreement
Area in accordance with the Agreed Issues and Protocols.
4.
Community Benefits
Unless otherwise indicated in Part A, clause 4, the State will deliver the
Community Benefits described in Schedule 4.
5.
Employment, Training and Business Development
The State will use best endeavours to comply with the Indigenous Employment
Policy for Queensland Government, Building and Civil Construction Projects.
6.
Cultural Heritage
6.1 The registered Native Title Body Corporate and/or the Registered Native Title
Claimant warrant that the party identified in Part A, clause 5 as the
Aboriginal/Torres Strait Islander Party is, for the purposes of this Agreement,
the Aboriginal/Torres Strait Islander Party (as defined by the ACHA/TSICHA)
for the Agreement Area.
6.2 The [Insert either: Aboriginal Party or Torres Strait Islander Party] and the State
agree that upon execution, this agreement is ‘another agreement’ for the
purposes of the [Insert either: ACHA/TSICHA].
6.3 The [Insert either: Aboriginal Party or Torres Strait Islander Party] and the State
agree that the State’s duty of care under the [Insert either: ACHA/TSICHA] will
be satisfied by the State complying with the requirements of clauses 7 and 8.
7.
Monitoring
7.1 This clause 7 only applies to the doing of Significant Ground Disturbance Acts
in connection with this Agreement.
7.2 The State will employ a Monitor or procure the Construction Contractor to
employ a Monitor nominated by the [Insert either: Aboriginal Party or Torres
Strait Islander Party] for the purposes of this clause 7.
Page 10 of 27
Document No: 3670199
7.3 Subject to clauses 7.5 and 7.6, the [Insert either: Aboriginal Party or Torres
Strait Islander Party] and the State agree that the Monitor must be present
during Significant Ground Disturbance Acts.
7.4 The [Insert either: Aboriginal party or Torres Strait Islander Party] and the State
agree that prior to the doing of any Significant Ground Disturbance Acts, the
State or the Construction Contractor must give the [Insert either: Aboriginal
Party or Torres Strait Islander Party] at least five days notice of the date and
times at which a Monitor is required to attend the Agreement Area to undertake
Monitoring.
7.5 If the Monitor does not attend the Agreement Area on the dates or the times
referred to in the notice given by the State or the Construction Contractor under
clause 7.4 then the parties agree that Significant Ground Disturbance Acts can
commence in the absence of a Monitor.
7.6 If the State deems in its absolute discretion that a Monitor who attends the
Agreement Area is unfit to safely undertake Monitoring then the State:
(a) is entitled to refuse the Monitor entry onto the Agreement Area; and
(b) will make all reasonable efforts to contact the [Insert either: Aboriginal
Party or Torres Strait Islander Party] to request that a replacement
Monitor attend at the Agreement Area before Significant Ground
Disturbance Acts commence on that day.
7.7 If a Monitor undertakes Monitoring in compliance with this clause, the [Insert
either: Aboriginal Party or Torres Strait Islander Party] and the State agree that
the fee payable is $350.00 (exclusive of GST) for each day the Monitor attends
at the Agreement Area and undertakes Monitoring with a pro-rata adjustment
for any period relating to part of an 8 hour day.
8.
Discovery of a Find
8.1 If a Find is discovered on the Agreement Area during the construction of the
Government Infrastructure, the State must cease construction of the
Government Infrastructure within the Find Preservation Zone and may only
recommence construction within the Find Preservation Zone after the expiration
of 72 hours, measured from the time that the notice in clause 8.2 is given, or
such other time as agreed between the Cultural Heritage Contact Officer and
the State Cultural Heritage Contact Officer.
8.2 On the discovery of a Find, the State and/or a Monitor must promptly notify the
Cultural Heritage Contact Officer of the Find and its location.
8.3 Within 24 hours of being notified of the Find under clause 8.2, the Cultural
Heritage Contact Officer must:
(a) attend the Find Preservation Zone and evaluate whether the Find is a
[Insert either: Significant Aboriginal Object/Significant Torres Strait
Islander Object];
Page 11 of 27
Document No: 3670199
(b) if the Find is a [Insert either: Significant Aboriginal Object/Significant
Torres Strait Islander Object], determine whether or not it may be
removed from the Find Preservation Zone;
(c) if the Find may be removed from the Find Preservation Zone, remove the
Find;
(d) if the Find may not be removed from the Find Preservation Zone, provide
a recommendation to the State for ensuring that harm to the Find is
minimised by further construction of the Government Infrastructure in the
Find Preservation Zone and if relevant the Agreement Area generally; and
(e) provide a written evaluation to the State providing details of the Find,
including its location within the Agreement Area, and its cultural heritage
significance.
8.4 If the Cultural Heritage Contact Officer fails to:
(a) remove the Find from the Find Preservation Zone under clause 8.3(c); or
(b) provide a recommendation under clause 8.3(d);
after the expiration of 72 hours measured from the time that the notice in clause
8.2 is given, the State may remove the Find and store it safely before
recommencing the construction of the Government Infrastructure in the Find
Preservation Zone.
8.5 The process for Finds as set out in this clause 8 is shown in the flow-chart in
Schedule 6.
8.6 If any human remains are uncovered, or a Find is suspected to contain any
human remains, the procedure in Schedule 7 must be followed and the process
in clauses 8.3 and 8.4 ceases to apply.
9.
GST
The Recipient of a Taxable Supply made under this Agreement must pay the
GST on the Taxable Supply to the Supplier within 14 days of receiving a Tax
Invoice for the Taxable Supply from the Supplier in addition to consideration for
the Taxable Supply.
10. Costs
10.1 The State will pay the reasonable costs of the [Insert as necessary: Registered
Native Title Claimants/Registered Native Title Body Corporate] for the
negotiation, preparation and execution of this Agreement, including reasonable
requests for resourcing for their participation, including such costs as travel or
meeting costs and obtaining professional advice.
10.2 The State will pay any stamp duty payable on this Agreement in accordance
with the provisions of the Duties Act 2001 (Qld).
Page 12 of 27
Document No: 3670199
11. No Termination for Breach
The parties agree that no breach of this Agreement by any party will give to any
other party a right to elect to terminate the Agreement, but that any party may
exercise any other remedy available to it in respect of such breach.
12. Dispute Resolution
12.1 A party claiming that a Dispute has arisen must give a Dispute Notice to the
other parties within five Business Days after a Dispute arises.
12.2 Within five Business Days after the Receipt Date a representative of each party
involved in the Dispute must discuss the Dispute and negotiate to resolve the
Dispute.
12.3 If the Dispute is not resolved within ten Business Days after the date on which
the authorised representatives have begun discussions and negotiations as
required under clause 12.2, then either party may take any action to resolve the
Dispute including commencing court proceedings.
12.4 This clause 12 does not prevent any party from obtaining any urgent injunctive,
declaratory or other relief from a court.
13. Notices
13.1 All notices given under this Agreement must be:
(a) in writing; and
(b) delivered or sent by prepaid post to the recipient’s address set out in Part
A, clause 1; or
(c) sent by facsimile to the recipient’s facsimile number set out in Part A,
clause 1.
13.2 Subject to clause 13.3, notice given in accordance with clause 13.1 will be
deemed to be given:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, ten Business Days after the date of posting; and
(c) if sent by facsimile, when the sender’s facsimile system generates a
message confirming that the notice was transmitted in its entirety to the
facsimile number of the recipient.
13.3 If the facsimile transmission referred to in clause 13.2(c) is on a day which is
not a Business Day or the message referred to in clause 13.2(c) confirms that
the notice was transmitted after 5.00pm on a Business Day it will be deemed to
have been given on the next Business Day.
Page 13 of 27
Document No: 3670199
13.4 If any party changes its contact details from those set out in Part A, clause 1 it
must notify the other party of that change as soon as possible and in
accordance with clause 13.1.
14. General
14.1 Each party must do all things reasonably necessary to give full effect to this
Agreement.
14.2 A party must not assign its rights under this Agreement without the prior written
consent of the other party.
14.3 A right under this Agreement may only be waived in writing, executed by the
party giving the waiver.
14.4 This Agreement can only be varied by written agreement executed by each
party.
14.5 This Agreement may be executed in counterparts.
14.6 Part or all of any clause or Schedule of this Agreement that is illegal or
unenforceable may be severed from this Agreement and the remaining part of
this Agreement will continue in force.
14.7 This Agreement constitutes the entire agreement between the parties in respect
of its subject matter and supersedes any prior discussions, negotiations,
arrangements and agreements in connection with it.
14.8 This Agreement is governed and construed according to the law of the State of
Queensland and the parties agree to submit to the jurisdiction of the Courts of
the State of Queensland.
Page 14 of 27
Document No: 3670199
Schedule 1
Definitions
In this Agreement unless the context otherwise requires or the contrary
intention appears, the following terms will have the following meanings
assigned to them:
“Aboriginal Party” has the meaning given in the ACHA;
“ACHA” means the Aboriginal Cultural Heritage Act 2003 (Qld);]
“Agreed Issues and Protocols” means those actions set out in Schedule 3 to
be undertaken by the State in relation to the doing of the Government
Infrastructure Acts to address the obligations set out in section 24JAA(14) of
the NTA;
“Agreement” means this document including all schedules;
“Agreement Area” means the area shown on the maps and described in the
Notice in Schedule 2;
[Insert if required: “ALA” means the Aboriginal Land Act 1991 (Qld);]
“Business Day” means a day that is not a Saturday, Sunday or Public
Holiday;
“Community Benefits” means the community benefits identified in Schedule
4;
“Construction Contractor” means the contractor engaged by the State to
construct the Government Infrastructure;
“Consultation Meeting” means a consultation meeting held pursuant to
sections 24JAA(13)-(15) of the NTA;
“Cultural Heritage” has the meaning given to Aboriginal cultural heritage in
the ACHA or Torres Strait Islander cultural heritage in the TSICHA as relevant;
“Cultural Heritage Contact Officer” means the [Insert either:
Aboriginal/Torres Strait Islander] Parties’ cultural heritage contact officer for the
purposes of clause 8 being the person listed in Schedule 5, or their nominated
representation;
“Dispute” means a dispute between any parties to this Agreement with respect
to this Agreement, or any of its provisions;
“Dispute Notice” means written notice containing full particulars of the
Dispute;
“Find” means a suspected Significant [Insert either: Aboriginal/Torres Strait
Islander] Object;
Page 15 of 27
Document No: 3670199
“Find Preservation Zone” means an area within a three metre radius of a Find; “Future Acts” has the meaning given in the NTA; “Ground Disturbance” means: (a) disturbance by machinery of the topsoil or surface rock layer of the ground
such as by ploughing, drilling or dredging; and/or
(b) the removal of native vegetation by disturbing root systems and exposing
the underlying soil;
“GST” has the meaning given in the GST Act;
“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999
(Cth);
“Government Infrastructure” means the facilities and/or infrastructure
referred to in Part A, clause 3 and described in the Notice;
“Government Infrastructure Acts” means any act done as part of, or in
relation to:
(a) [Insert if required: the grant of the Lease; and/or]
(b) the construction, operation, use, maintenance or repair of the Government
Infrastructure;
[Insert if required: “Lease” means a lease to be granted by the Trustee to the
State under the [Insert: ALA/TSILA/LG(AL)A] over the Lease Area for the
Government Infrastructure];
[Insert if required: “Lease Area” means the area described in and shown on
the map attached to the Notice in Schedule 2 to be subject to the Lease];
[Insert if required: “LG(AL)A” means the Local Government (Aboriginal
Lands) Act 1978 (Qld);]
“Monitor” means a person having knowledge of Cultural Heritage and
nominated by the [Insert either: Aboriginal Party or Torres Strait Islander Party]
to provide Monitoring in accordance with clause 7;
“Monitoring” means the process whereby a Monitor assesses locations within
the Agreement Area for the presence of Cultural Heritage during the doing of
Significant Ground Disturbance;
“Native Title” has the meaning given in the NTA;
“Native Title Claim Group” means the group identified at Part A, clause 1
represented by the Registered Native Title Claimants;
“Non-Extinguishment Principle” has the meaning given in the NTA;
Page 16 of 27
Document No: 3670199
“Notice” means the section 24JAA notice issued for the Government
Infrastructure Acts attached at Schedule 2;
“NTA” means the Native Title Act 1993 (Cth);
“Public Holiday” has the meaning given in the Acts Interpretation Act 1954
(Qld);
“Receipt Date” means the date by which a Dispute Notice is taken to have
been received in accordance with clause 13;
“Recipient” has the meaning given in the GST Act;
“Registered Native Title Claimants” has the meaning given in the NTA, and
in this Agreement the Registered Native Title Claimants are the parties listed in
Part A, clause 1 as the Registered Native Title Claimants;
“Registered Native Title Body Corporate” has the meaning given in the NTA,
and in this Agreement the Registered Native Title Body Corporate is the party
identified in Part A, clause 1 as the Registered Native Title Body Corporate;
“Representative Body” means the representative Aboriginal/Torres Strait
Islander body or any body funded under section 203FE of the NTA to perform
the functions of a representative Aboriginal/Torres Strait Islander body for the
Agreement Area;
“Significant [Insert either: Aboriginal/Torres Strait Islander] Object” has
the meaning given in the [Insert either: ACHA/TSICHA];
“Significant Ground Disturbance Acts” means activities conducted by or on behalf of the State on the Agreement Area in connection with the Government
Infrastructure Acts which involve Ground Disturbance over areas which have not previously been subject to Ground Disturbance;
“State” means the State of Queensland acting through the [Insert the relevant State Department or Agency]; “State Cultural Heritage Contact Officer” means the State’s cultural heritage contact officer for the purposes of clause 8 being the person listed in Schedule 5, or their nominated representative;
“Supplier” has the meaning given in the GST Act; “Taxable Supply” has the meaning given in the GST Act; “Tax Invoice” has the meaning given in the GST Act; and “Torres Strait Islander Party” has the meaning given in the TSICHA; “Trustee” means the body identified in Part A, clause 1 as the Trustee of the Agreement Area;
“TSICHA” means the Torres Strait Islander Cultural Heritage Act 2003 (Qld);
Page 17 of 27
Document No: 3670199
[Insert if required: “TSILA” means the Torres Strait Islander Land Act 1991
(Qld).]
Interpretation
In this Agreement:
(a) words indicating a gender include each other gender;
(b) words in the singular include the plural and words in the plural include the
singular;
(c) the table of contents, the recitals and the headings do not affect the
meaning or interpretation of this Agreement;
(d) a reference to a clause or Schedule is a reference to a clause in or
Schedule to this Agreement including as altered in accordance with
clause 14.4;
(e) a reference to a party includes its administrators, successors and
permitted assigns;
(f)
in the case of any inconsistency between a clause and a Schedule, the
clause will prevail to the extent of any inconsistency;
(g) an agreement, acknowledgement, representation or warranty on the part
of two or more persons binds them jointly and severally;
(h) an agreement, acknowledgement, representation or warranty in favour of
two or more persons is for the benefit of them jointly and severally;
(i)
a reference to a nominated time is a reference to that time in Queensland;
(j)
when the day or last day for doing an Act is not a Business Day, the day
or last day for doing the Act will be the following Business Day;
(k) where a period of time is to be calculated from after a given day, event or
act, the period is to be calculated excluding the given day or the day on
which the event or act occurred;
(l)
a reference to a Queensland statute or regulation is to be interpreted in
accordance with the Acts Interpretation Act 1954 (Qld); and
(m) a reference to a Commonwealth statute or regulation is to be interpreted
in accordance with the Acts Interpretation Act 1901 (Cth).
Page 18 of 27
Document No: 3670199
Schedule 2 Section 24JAA Notice Page 19 of 27
Document No: 3670199
Schedule 3
Agreed Issues and Protocols [Note: Set out here any issues and protocols agreed with the Native Title Parties
regarding:
1 ways of minimising the Government Infrastructure Acts’ impact on registered
native title rights and interests in relation to land or waters in the area;
2 access to the land or waters; and
3 the way in which the Government Infrastructure Acts might be done.
This may involve addressing issues of the design, location and nature of the
Government Infrastructure Acts. It may also involve observing agreed
processes/protocols when accessing the land or constructing the infrastructure.
Consultation must also comply with any requirements determined by the
Commonwealth Minister by legislative instrument. At the time of drafting this
agreement this instrument had not commenced.]
1. [example – delete if not required] The State must use reasonable endeavours to
overcome and minimise any deleterious effects upon the environment arising
from its use of the Agreement Area.
Page 20 of 27
Document No: 3670199
Schedule 4 Community Benefits [Note: Examples of possible community benefits.]
[Note: The following non-exhaustive list of examples is provided as a guide
only and does not represent a commitment by the State to provide any of the
listed benefits.]
[Note: any benefits listed below not used in the final negotiated agreement
should be deleted]
1.
[Example] Naming Rights for New Health Facility
Description: The Registered Native Title Claimants Registered Native Title Body
Corporate will be given the opportunity to select the official name of the new medical
centre to be constructed by the State in [Insert name of Indigenous community] as
contemplated under this Agreement.
Implementation and Timing: The Registered Native Title Claimants/Registered
Native Title Body Corporate will submit the proposed name of the new medical
centre to the State on or prior to [insert date]. An official opening of the new medical
centre, including an announcement of the official name of the new medical centre as
selected by the Registered Native Title Claimants/Registered Native Title Body
Corporate will be carried out by the State in conjunction with the Registered Native
Title Claimants/Registered Native Title Body Corporate on or prior to [insert
proposed date]. The State reserves the right to reject any proposed names which are
contrary to departmental policy.
2.
[Example] Provision of Office Resources
Description: The State will provide office resources to the Registered Native Title
Claimants/Registered Native Title Body Corporate (such as office furniture, fax
machine, telephone) as requested by the Registered Native Title
Claimants/Registered Native Title Body Corporate up to the value of up to [$insert
value].
Implementation and Timing: The Registered Native Title Claimants/Registered
Native Title Body Corporate will provide a list of required office resources to the
State in writing by [insert date]. The list must present the list of requested office
resources in order of priority for the Registered Native Title Claimants/Registered
Native Title Body Corporate. The State will provide the office resources requested by
the Registered Native Title Claimants/Registered Native Title Body Corporate within
[insert time period] of receipt of the written request up to the value of [$insert value].
If the value of the office resources requested by the Registered Native Title
Page 21 of 27
Document No: 3670199
Claimants/Registered Native Title Body Corporate exceeds [$insert value], the State
will use it best endeavours to provide the office resources requested by the
Registered Native Title Claimants/Registered Native Title Body Corporate up to the
value of [$insert value] in accordance with the order of priority identified by the
Registered Native Title Claimants/Registered Native Title Body Corporate.
3.
[Example] Restoration of Cemetery
Description: The State will procure restoration works in relation to the [insert name]
Cemetery to the value of [$insert value].
Implementation and Timing: The State will consult with the Registered Native Title
Claimants/Registered Native Title Body Corporate in relation to the works required
by the Registered Native Title Claimants/Registered Native Title Body Corporate to
be undertaken in relation to repairs, maintenance and restoration of the [insert name]
Cemetery on or prior to [insert date]. The State will procure restoration works to be
undertaken in relation to the cemetery up to the value of [$insert value] within [insert]
days of consultation with the Registered Native Title Claimants/Registered Native
Title Body Corporate. The State will, in the procuring of those restoration works, use
its best endeavours to take into account any matters or requests addressed by the
Native Title Parties during consultation.
4.
[Example] Bush Tucker Garden
Description: The State will provide [$insert] to the [insert name] Primary School to
be used by the school towards the creation of a bush tucker garden.
Implementation and Timing: The State will provide [insert name] Primary School
with [$insert] for the school to use towards the creation of a bush tucker program or
other educational program agreed between the State and the school on or before
[insert date].
[Other Examples of Possible Community Benefits]
1. Delivery of community education program (e.g. business skills, Microsoft Office
training, health education, political engagement training)
2. Delivery of sporting or cultural workshops (e.g. rugby league workshop, music
workshops, painting workshops)
3. Assistance for indigenous artists or performing artists (e.g. singer, dance
company, artist, storyteller) to visit the relevant community.
4. Sponsor keynote speakers to visit school groups or other community
organisations.
5. Provision of works towards restoration, repair or beautification of memorials,
parks, community display boards or other community facilities.
Page 22 of 27
Document No: 3670199
6. Assist the local primary school in development of a cultural enrichment teaching
program.
7. Provision of skills and labour to the local primary school for repair of e.g. school
play area, gardens, fencing.
8. Assist existing local indigenous community organisations.
9. Provision of flood boat for flood prone communities.
10. Provision of bilingual street signs.
11. Contribute to cultural items such as a cultural heritage keeping place, a
community Indigenous Knowledge Centre base or library complex, or a festival,
dance or sports event.
12. Assist in promotion of cultural awareness induction for non-local workers.
13. Naming rights for streets, buildings (hospitals/wards) other centres, parks, sports
fields.
14. Sponsor a cultural heritage study (as distinct from a cultural heritage survey).
15. Assist in recording of cultural heritage sites and values so as to aid protection
and recognition.
16. Construction of other centres (or low cost leasing of parts of government
buildings) for use by community representatives, community groups or native title
parties for their own business or cultural purposes.
17. Construct without cost or at low cost community purpose areas on behalf of the
local council, e.g. public pool, library, ‘drop –in’ centre.
18. Assist in the recognition, promotion and funding of cultural
days/events/ceremonies.
19. Provision of resources for existing offices/associations e.g. provision of office
equipment/telephones etc.
20. Provision of vehicle for use by offices/associations.
21. Provide cadetships or work experience programs.
22. Provide land use or environmental education programs.
23. Provide surveyors to assist Council or Native Title Parties to survey land to assist
in possible commercial lease applications - i.e. the land would need to be
surveyed to be registered so that a lease could proceed.
Page 23 of 27
Document No: 3670199
24. Provide land and/or building repair, maintenance or renovation; for example, for
PBC offices, public parks, sports areas, family tree site, pathways, rodeo ground,
local church, memorial gardens during the period that the action body is in the
community.
25. Provision of resource material for community programs, educational material etc
26. Sponsor items to promote community events or associations, e.g. printing shirts
for the native title party.
27. Establish scholarship/bursary program.
28. Assist in the provision of a skills audit for the community.
29. Provision of disabled ramps and other disability access items where required.
30. Assistance to undertake White Card construction induction training.
Page 24 of 27
Document No: 3670199
Schedule 5
Cultural Heritage Contact Officers
State Cultural Heritage Contact Officer
[Insert contact name and contact details]
Cultural Heritage Contact Officer
[Insert contact name and contact details]
Page 25 of 27
Document No: 3670199
Schedule 6 - Procedure for dealing with Finds
Suspected Find discovered on the Agreement Area during the
construction of the Government Infrastructure
Construction of the Government
Infrastructure must cease within 3 metre
radius of the Find (Find Preservation
Zone)
State and/or Monitor to notify the
Cultural Heritage Contact Officer of
the Find and its location
Within 24 hours of notification of the Find, the Cultural Heritage Contact
Officer must attend the Agreement Area to evaluate whether the Find is a
Significant Aboriginal/Torres Strait Islander Object
Find is a Significant Aboriginal/Torres
Strait Islander Object
Find is not a Significant Aboriginal/Torres
Strait Islander Object
Cultural Heritage Contact Officer to determine whether Find
can be removed from the Find Preservation Zone
Find can not be removed
Find can be removed
Cultural Heritage Contact
Officer to provide a
recommendation to the State
Cultural Heritage Contact
Officer for ensuring that harm
to the Find is minimised by
further construction of the
Government Infrastructure in
the Find Preservation Zone
and the Agreement Area
Recommendations
provided
Recommendations
not provided
Construction of the Government
Infrastructure can recommence in Find
Preservation Zone in accordance with
the recommendations of the Cultural
Heritage Contact Officer
Page 26 of 27
Document No: 3670199
Cultural Heritage Contact Officer to
remove Find from the Find
Preservation Zone.
Find not
removed
Find
removed
Construction of the
Government
Infrastructure can
recommence in Find
Preservation Zone
Construction of the Government
Infrastructure can recommence in
Find Preservation Zone within 72
hours of the notification of the
discovery of the Find.
Schedule 7 Procedure for dealing with human remains Human remains found during Government Infrastructure Acts Contact police and cease works in vicinity until advised by police that works
may recommence
Suspected unregistered
burial
Police initiate crime scene response and undertake full
inspection
Second opinion obtained from policenominated expert
Non-Aboriginal or Torres Strait Islander remains,
suspected criminality, or doubt
Police with Cultural Heritage Co-ordination Unit
to provide technical assistance to Coroner as
requested
Material removed in controlled method and
with appropriate dignity, and laboratory
analysis undertaken
Determined to
be recent, or
criminal
Determined to be
Aboriginal or Torres
Strait Islander
remains
Police action
ensues
Page 27 of 27
Document No: 3670199
Aboriginal or Torres Strait Islander burial
Cultural Heritage Coordination Unit
contacts Aboriginal or Torres Strait
Islander community for immediate
involvement
Determined as Aboriginal or
Torres Strait Islander remains
Traditional custodians decide
arrangements with Cultural Heritage
Coordination Unit
Department of Natural Resources and Mines
Module J
Dealings on continuing pre-Wik reservation and leases
Date: 8 October 2015
Queensland
Government
Module J Sections 24JA & 24JB
Dealings on continuing pre-Wik reservation and leases
DOES THE PROPOSED FUTURE ACT FIT WITHIN THIS MODULE? For this Module to apply, your proposed future act must not fall within an earlier
Module.
Especially check Module JAA if your proposed future act is on Indigenous land.
This Module helps you assess whether your proposed future act –
 is being done on land or waters subject to a reservation or lease for a particular
purpose, which came into existence on or before 23 December 1996;
AND
 is an act that is in accordance with the purpose of the reservation or lease or is an
act that will have no greater impact on native title than what is already allowed
under the reservation or lease.
If your future act is not being done on land or waters subject to a pre-Wik reservation or
lease, proceed to Module K.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
2
TABLE OF CONTENTS
Part 1
What is section 24JA? ............................................................................................... 4
Part 2
What is the purpose of section 24JA? ...................................................................... 4
A.
Requirements
Part 3
Does my future act satisfy the requirements of section 24JA? .................................. 5
B.
Definitions and explanations
Part 4
What does “particular purpose” mean? ................................................................... 10
Part 5
What does “under or in accordance with the reservation” mean? .......................... 11
Part 6
What does “does not have a greater impact on native title” mean? ....................... 12
Part 7
What is a “public work”? ........................................................................................... 13
Part 8
Can I change the purpose of a Land Act reserve under section 24JA? ................. 15
Part 9
Can section 24JA apply to mining? ......................................................................... 17 C.
Effect on native title, compensation and decision-making
Part 10
What is the effect of an act done under section 24JA on native title rights and interests?
19
Part 11
Is compensation payable for the doing of the future act? ........................................ 20
Part 12
Who makes the decision whether this Module applies? .......................................... 20
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
3
Part 1
What is section 24JA?
Section 24JA deals with future acts done on land or waters subject to a reservation.
A
reservation could include a mining lease, a term lease, a Land Act reserve, a State Forest, etc
(the reservation).
Section 24JA of the NTA applies to your proposed future act if it is to be done on land or waters
subject to a reservation for a particular purpose, which came into existence on or before 23
December 1996,
AND is
(a)
an act that is in accordance with the purpose of the reservation;
OR
(b)
an act that will have no greater impact on native title than that which is already allowed
on the area covered by the reservation.
Examples
Andrew Appleby, the President of the Sunnybank Soccer Club, has made an application to the
Department of Environment and Resource Management for a lease to be granted to the
Club for the construction of a clubhouse on a reserve for recreation purposes
gazetted in 1968.
The grant of a sales permit to get quarry materials within an area covered by a mining lease
that was granted on 20 December 1990.
Part 2
What is the purpose of section 24JA?
The purpose of section 24JA is to allow particular lands or waters that were reserved, set aside
or granted in the past for a particular purpose to be used in the future.
Section 24JA ensures such use is valid in relation to native title.
This Module is set out in 3 divisions –
A. Requirements;
B. Definitions and explanations; and
C. Effect on native title, compensation and decision-making.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
4
A. Requirements
Part 3
Does my future act satisfy the requirements of section 24JA?
Your proposed future act will fall within section 24JA if it satisfies ALL of the following
requirements1 –
Requirement 1
Your proposed future act will be done on an area of land or waters that is subject to a
reservation, dedication, condition, permission or authority (“reservation”).
Examples
 Reserves gazetted under various land legislation, eg. the Land Act 1962. For example, a
reserve for recreation purposes, reserve for education purposes, reserve for police station
purposes, reserve for Aboriginal purposes, reserve for camping and water purposes, etc.
 National parks;
 Timber reserves;
 State forests;
 Marine parks;
If the land is currently a forest reserve,
then this Module cannot apply as forest
reserves only came into existence after
23 December 1996.
 Leases for particular purposes, eg. a mining lease;
 Stock routes;
 Vested land. (If the area you are considering is land vested in fee simple, go back and
consider Module BA.)
AND
Requirement 2 The reservation of the land or waters must be for a particular purpose. 2
Refer to Part 4 – This Part explains a “particular purpose”.
AND
Requirement 3
The act containing, making or conferring the reservation was valid; AND
(a)
was done by the Commonwealth or the State;
1
Photo - http://www.epa.qld.gov.au/parks_and_forests/great_walks/
Erubam Le (Darnley Islanders) #1 v Queensland [2003] FCAFC 227; (2003) 202 ALR 312 (14 October 203). 2
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
5
OR (b)
was done by the making, amendment or repeal of legislation by the Commonwealth or
the State.
“the act”
For example, such acts could be as follows –

under section 31 of the Land Act 1994, the Minister, by gazette notice, may dedicate
unallocated State land to be a reserve for a community purpose;

under section 25 of the Forestry Act 1959, the Governor in Council may, by regulation, set
apart and declare as a State forest any Crown land, or any land or part thereof which may
then be a timber reserve.
“valid”
The reservation must be valid under State legislation and in relation to native title.
State legislation
The reservation will not be valid under State legislation if there was no power under legislation
to make the reservation.3
For example, under the Land Act 1994 a reservation can only be
made over unallocated State land. Therefore if a reservation was made over an area covered by
a permit to occupy, then it would not be valid.
In relation to native title
In relation to whether the creation of the reservation is valid in relation to native title, consider
the following timeline.
The creation of
the reservation
is VALID.
1.1.1994
23.12.1996
The creation of the reservation is
VALID only if the whole or part
of the area covered by the
reservation was subject to, at
any point in time prior to 1.1.94 –

a valid freehold estate;

a valid lease (other than a
mining lease); or

a valid public work.
If it is NOT valid, you have not satisfied Requirement 3.
3
However, an act done in breach of a condition regulating the exercise of a statutory power is not
necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a
legislative purpose to invalidate an act that fails to comply with the condition – McHugh, Gummow, Kirby
and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at
[91]cited in Neowarra v State of Western Australia [2003] FCA 1402 at [436].
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
6
AND
Requirement 4
The act containing, making or conferring the reservation was done on or before 23 December
1996.
Example
An area of land was dedicated as a timber reserve on 27 January 1984.
AND
Requirement 5 Your proposed future act is done in good faith: “good faith” – this means in relation to Requirement 5 that your proposed future act is
something that is in accordance with the purpose of the reservation or will not have a greater
impact on native title than that which can be done under the reservation. You need to make a
genuine and honest assessment.
(a)
under or in accordance with the reservation;
“under or in accordance with the reservation”
For an explanation of this term refer to Part 5.
OR
(b)
in the area covered by the reservation, so long as your proposed future act
does not have a greater impact on native title than any act done in accordance
with the purpose of the reservation.
“does not have a greater impact”
For an explanation of this term refer to Part 6.
AND
Requirement 6
The proposed future act must not have the effect of cancelling the reservation.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
7
IMPORTANT
The proposed future act must be carried out in the area that continues to be
covered by the reservation. If the effect of the proposed future act is that the
reservation is cancelled, then section 24JA cannot apply.
Examples
Change of purpose of a reserve
An example of an act that can meet Requirement 6 is the change of purpose of a Land Act
reserve (subject to certain requirements), where the purpose is changed without cancelling the
reserve - refer to Part 8.
Excision of part of a reserve for a road
An example of an act which does NOT meet Requirement 6 is the
excision of part of a reservation for a road dedication action.
Requirement 6 is not met as the part of the reservation to be dedicated as road is excised from
the reserve and reverts to unallocated State land thereby removing the on or before 23
December 1996 reservation.
This dealing should instead proceed under section 24KA of the NTA provided all of the
requirements set down in Module K are satisfied.
If your proposed future act satisfies ALL of the above 6 requirements it may proceed under section 24JA of the NTA and is valid in relation to native title. You now need to take the following steps – Step 1 Complete your Native Title Assessment Form – Annexure 7.1. Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
8
Step 2
If your proposed future act consists of the construction or establishment of a public work,
the person proposing to construct or establish the work must provide a notification and an
opportunity to comment to the relevant native title parties in accordance with Annexure 7.2 and
Annexure 7.3.
Who carries out the notification process?
It is the construction or establishment of the public work which triggers the notification
process.
Therefore, it is the person constructing or establishing the public work who undertakes the
notification process. Where a contractor is constructing the public work on behalf of the
State, the State department or agency should carry out the notification process.
IMPORTANT - If a lease, for example, is first required to be granted to authorise the
construction of the public work, there is no notification process as the future act is the grant
of the lease to permit the construction of the work NOT the construction of the public work.
“public work”
For a definition of public work refer to Part 7.
Example
Before Education Queensland builds a school (ie. the public work) on a reserve for
education purposes gazetted on 1 January 1970, it is responsible for providing the
procedural rights to the relevant native title parties.
Step 3
If your proposed future act is the creation of a management plan for a protected area under
the Nature Conservation Act 1992 or a marine park under the Marine Parks Act 1982, the
person proposing to create the plan must provide a notification and an opportunity to comment to
the relevant native title parties in accordance with Annexure 7.2 and Annexure 7.3 before the
plan is finally approved. For example, the notification could be provided at the time the draft is
released for public comment.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
9
IMPORTANT
For a management plan to be a future act the plan must actually have an impact
upon native title rights and interests in the area, ie. it must for example restrict or
prohibit access to an area or the doing of certain activities (eg. no camping is
allowed in a particular area) that would be inconsistent with the exercise of
native title rights and interests.
If the management plan is NOT a future act, then this Module does not apply and
you can proceed without further reference to native title (subject to any
consultation requirements under the relevant State legislation).
Step 4
For all other future acts under this Division, there are no procedural rights that must be
provided to the relevant native title parties.
Examples


The grant of a lease to a local hockey club on a reserve for recreation purposes.
The grant of a sales permit for the getting of quarry materials on a reserve for gravel
purposes.
If your proposed future act does not satisfy ALL of the above
requirements in Division A, you must consider whether your proposed
future act falls within Module K.
B. Definitions and explanations
Part 4
What does “particular purpose” mean?
Section 24JA requires that the reservation must provide that the land or waters are to be used
for a particular purpose. This means that a purpose needs to be stated in the reservation.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
10
Examples
If the act making, containing or conferring the reservation was –

the grant of a lease – the purpose of the lease must be stated on the lease instrument;

the gazettal of a reserve – the purpose must be stated in the Proclamation or Order in
Council notified in the Government Gazette.
A deed of grant in trust for the benefit of Aboriginal or Torres Strait Islanders
is NOT a reservation for a particular purpose and therefore does NOT
satisfy Requirement 2. Therefore Module J cannot apply.
Part 5 What does “under or in accordance with the reservation”
mean?
Your proposed future act is done under or in accordance with the reservation if it is done
pursuant to the purpose for which the land was reserved, set aside or granted.4
Examples

The construction of a primary school, high school, kindergarten, TAFE or environmental
education centre on a reserve for education purposes. As these facilities are for the purpose
of education, then their construction is in accordance with the reservation.

The grant of a lease for the construction of a soccer clubhouse on a reserve for recreation
purposes. As a soccer clubhouse is for the purpose of recreation, the grant of the lease is in
accordance with the reservation.

The grant of a camping permit under the Nature Conservation
Regulation 1994 on a national park.

The grant of a forestry licence to harvest timber on a State forest or timber reserve.

The grant of a sales permit to extract gravel from a gravel reserve.

Under section 59(1) of the Land Act 1994, reserves must be managed in a way that is
consistent with their purpose. A trustee lease can be granted over a reserve where –
(a) it is consistent with the purpose of the reserve; and
(b) it would facilitate or enhance the purpose of the reserve.
4
Para [12.6], Explanatory Memorandum to the Native Title Amendment Bill 1997
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
11
Such leases would be classified as leases that are under or in accordance with the
reservation.
If you are unsure whether the proposed future act is under or in accordance with the reservation,
then you should contact the person or department responsible for the reservation. For example,
for a Land Act reserve contact the trustee of the reserve or the relevant regional office of the
Department of Environment and Resource Management.
Part 6 What does “does not have a greater impact on native title”
mean?
To assess if your proposed future act would have no greater impact on native title, consider
whether your proposed dealing will have the same or lesser physical impact as an act that could
be done under or in accordance with the current reservation. If yes, then your proposed dealing
would not have a greater impact on native title.
Examples

The NTA provides the example of where particular land has been reserved as a hospital site
before 23 December 1996, and instead a school is later built on the land. In this case, the
construction of a school would have no greater impact than that which a hospital would have
had on that particular reservation and therefore on native title. It is important to note that
under current State legislation and policy this particular example cannot occur and is
included to illustrate the phrase “does not have a greater impact”.

The grant of a sales permit for harvesting timber within an area covered by a mining lease
(the reservation).

The construction of a borrow pit by the Department of Transport and Main Roads to access
quarry materials for the construction of a road from a pastoral lease where the lease permits
the construction of a dam.

Under section 59(3) of the Land Act 1994, a trustee lease inconsistent with the purpose of
the reserve can be granted over a reserve where –
(a) the lease would not diminish the purpose of the reserve; AND
(b) no more improvements, other than improvements approved by the Minister, are built or
placed by the lessee on the lease area.
A lease that satisfied these two requirements would not have a greater impact.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
12

Refer to Part 8 (change of purpose) and Part 9 (mining) for some further examples in
relation to whether your proposed dealing would have a greater impact.
IMPORTANT – Conversion to freehold
You cannot convert land which is subject to a reservation to freehold title,
because freehold can only be granted over unallocated State land. Any reservation
needs to be cancelled and therefore the on or before 23 December 1996 reservation, required
for this Module to operate, is lost.
Part 7
What is a “public work”? Your proposed future act is a public work if it satisfies either of the following definitions5 -
Refer to Division B of Module CA for more examples of public works.
Definition 1
The work will be constructed or established by or on behalf of–
“on behalf of”
This means that the work can still be a public work even if the State does not physically construct
the work. In some cases, the State may choose to use a contractor. In this case, the contractor
is constructing the work on behalf of the State.
Where the State provides funding to a private organisation through a grant for a community
facility, eg. a clubhouse, the work is NOT done on behalf of the State and therefore is not a
public work for the purposes of the NTA.
5

the State or Commonwealth in any of its capacities;

a local government body; or

other statutory authority of the State or Commonwealth.
Section 253, NTA
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
13
“statutory authority” – in relation to the State or Commonwealth, means any authority
or body (including a corporation sole) established by a law of the Commonwealth or
State other than a general law allowing incorporation as a company or body corporate.6
N.B. Local authorities are also statutory authorities.
AND WILL CONSIST OF (a) a building, or other structure (including a memorial), that is a fixture;
Definition - Fixture
A fixture is an item attached to the ground other than under its own weight. An item which
is a fixture ceases to be the personal property of the person who attached it to the land as
the item becomes part of the land.
It is difficult to always know whether something is a fixture. For example, office partitions
which were not just sitting on the floor by their own weight but were secured to the floor
and walls by nails and bolts were held by the Federal Court not to be a fixture.7 However,
the general rule in relation to fixtures is where something is affixed to the land even slightly
it is to be considered as part of the land, unless the circumstances are such as to show
that it was intended all along to continue as a personal possession.8
Example
A demountable is a building that just sits on the ground and therefore is unlikely to be a
fixture as it is not attached to the ground. It is likely to be considered a fixture when it is
attached to the ground and/or an electricity line/sewerage pipes/water pipes are attached
to the demountable.
(b) a road, railway or bridge;
(c) a well, or bore, for obtaining water; or
(d) any major earthworks;
6
Section 253, NTA. In 2007, the Government Owned Corporations Act 1993 was amended converting all
statutory
GOCs to company GOCs.
7
Ball-Guymer v Livantes (1990) 102 FLR 327
8
Holland v Hodgson (1872) LR 7 CP 328; [1861-73] All ER Rep 237
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
14
Definition
Earthworks (other than in the course of mining) whose construction causes major
disturbance to the land, or to the bed or subsoil under waters.9 This means that
excavation of the area is required by machinery in order to level the land and/or fill of the
land. Please refer to the following photos showing what is and is not major earthworks.10
Major earthworks
Major earthworks
NOT major earthworks
Examples

The reclamation of a tidal area.

Dredging of a river.
OR
Definition 2
A building that is constructed on land other than on a lease with the authority of the State or
Commonwealth.
Example
The construction of an environmental educational centre on a reserve for education purposes by
Education Queensland.
Part 8 Can I change the purpose of a Land Act reserve under section
24JA?
You can change the purpose of a Land Act reserve under section 24JA provided that –
(a) there is no greater impact on native title;
Examples
The following are examples of where the development for either purpose would have a similar or
lesser impact on native title –
9
Section 253, NTA
http://www.clw.csiro.au/ImageGallery
10
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
15

The purpose of a reserve for showground purposes could be changed to a sport and
recreation purpose.

The purpose of a reserve for showground purposes could be changed to a parks and garden
purpose.
However, you could NOT change the purpose of a reserve for scenic purposes to a showground
purpose, as the latter purpose would allow a greater physical impact on the land than that
allowed on a scenic reserve, eg. a showground reserve would allow, for example, the
construction of ovals and pavilions, whilst the scenic reserve would not.
AND
(b) you do not remove or cancel the original reservation, ie. the act must be done in the area
continued to be covered by the reservation.
Under the Land Act 1994, the purpose of a reserve may be changed by gazette notice. There
are two scenarios as to how this can happen.
Scenario 1 – Section 24JA does apply The reserve continues but has undergone a change of purpose, eg. a name change.
For example, on 1 April 2001, by notice in the
Reserve for
Education
(gazetted on 1 March
1965)
Sport &
Recreation
Gazette, the reserve originally gazetted on 1
March 1965 for education purposes had its
purpose changed to sport & recreation.
The reservation itself is still a 1965 reservation
and therefore section 24JA can still apply.
Scenario 2 – Section 24JA does NOT apply
The reserve is cancelled, reverting to unallocated State land, and a new reserve is gazetted for
a new purpose.
Reserve for
Education
(gazetted on 1 March
1965)
Reserve for
Sport &
Recreation
Unallocated State Land (reserve cancelled on
1 April 2001)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
(a new reserve is
gazetted for a
different purpose on
or after 1 April 2001)
Chapter 5: Future Acts
16
Section 24JA does NOT apply in Scenario 2 above as the on or before 23 December 1996
reservation has been removed which is an essential requirement for section 24JA to apply.
Therefore the gazettal of a new reserve (or any future dealings on the new reserve) where the
original reserve is cancelled cannot proceed under section 24JA.
How do I carry out a change of purpose of a reserve under the Land Act
1994 which will satisfy the requirements of section 24JA of the NTA?
Procedures for dealing with reserves are set out in Chapter 15 (Trust Land) of the State Land
Practice Manual. The procedure for changing the purpose of a reserve is Procedure 15B
(pp.9-15). The State Land Practice Manual can be accessed from the SLAM Home Page on the
DERM Intranet.
Part 9
Can section 24JA apply to mining? Your proposed future act can constitute mining under section 24JA. N atural surface of
the land
N atural surface of
the land
50 m etres
3 m etres
Both these pictures fall within the definition of “mining” under the NTA.
Mining is defined under the NTA as including –
(a) explore or prospect for things that may be mined; or
(b) extract petroleum or gas from land or from the bed or subsoil under waters; or
(c) quarry;
but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface
of land, or of the bed beneath waters, for a purpose other than:
(d) extracting, producing or refining minerals from the sand, gravel rocks or soil; or
(e) processing the sand, gravel, rocks or soil by non-mechanical means.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
17
Whether your proposed future act is mining under the NTA, is relevant to defining whether your
proposed future act is a public work, the effect on native title and if procedural rights must be
provided to the native title parties.
Where your proposed future act constitutes mining, there are no procedural rights that
must be provided to the native title parties, as mining is excluded from the definition of public
work. Further, section 24JA/JB is not subject to the right to negotiate provisions as those
provisions can only be reached through section 24IC (Module IC) and section 24MD (Module
M).
IMPORTANT
As mining is excluded from the definition of a public work (refer to Part 8), the nonextinguishment principle will apply to the proposed future act and there are no procedural rights
that must be provided to the relevant native title parties.
The mining must be either –
(a) under or in accordance with the reservation;
Example
The grant of a sales permit under the Forestry Act 1959 to allow quarrying on a reserve for
quarry purposes or a reserve for gravel purposes.
OR
(b) have no greater impact on native title than the impact that an act done u
nder or in
accordance with the reservation would have.
Examples

The grant of an exploration permit under the Mineral Resources Act 1989 on a
reserve for abattoir purposes.

The grant of a sales permit under the Forestry Act 1959 to allow hard rock quarrying
on a reserve for recreation and water purposes. As this reserve would allow
substantial earthworks in the construction of recreation facilities and the
construction of artificial lakes, then the activity of quarrying would not have a greater
impact.
In contrast, the grant of a sales permit to allow hard rock quarrying on a scenic
reserve would have a greater physical impact than that which was already allowed
to occur on that reserve.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
18
C. Effect on native title, compensation and
decision-making
Part 10 What is the effect of an act done under section 24JA on native
title rights and interests?
If the future act is the construction or establishment of a public work, then it will wholly
extinguish any native title rights and interests.11 For all other future acts, the non-extinguishment
principle will apply.12
Non-extinguishment principle
This means that native title rights and interests affected by the doing of the future act continue to
exist and are not extinguished. However, while the future act exists, those native title rights and
interests inconsistent with the future act are not able to be exercised or enjoyed.
Example
The grant of a lease to a local hockey club on a reserve for recreation purposes, does NOT
constitute a public work and therefore the non-extinguishment principle applies.
Extinguishment
Extinguish means permanently extinguish. This means that after the extinguishment occurs the
native title rights and interests cannot revive, even if the act that caused the extinguishment
ceases. For example, if a valid public work was constructed over the whole of Lot A on Plan
6789 and was later removed, the native title rights and interests cannot revive over Lot A.
IMPORTANT
Native title will be extinguished over the footprint of the public work and any adjacent land or
waters the use of which is or was necessary for, or incidental to, the construction, establishment
or operation of the work (“section 251D area”). Refer to Module CA for examples of the section
251D area.
Example
If the future act is the construction of a fire station by the Queensland Fire Services on a reserve
for fire station purposes then any native title rights and interests will be extinguished over the
area covered by the fire station building and any adjacent area used during its construction or
operation.
11
12
Section 24JB(2), NTA
Section 24JB(3), NTA
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
19
The following table shows the effect on native title and the procedural requirements for the
different types of future acts done under section 24JA –
Type of future act
Effect on native title
Procedural requirements
Construction or
Extinguishment
Notification and an
establishment of a public
opportunity to comment
work
Creation of a management
Non-extinguishment principle
plan
Notification and an
opportunity to comment
All other future acts under
Non-extinguishment principle
No procedural requirements
this Module (eg. a trustee
lease over a Land Act
reserve)
Part 11
Is compensation payable for the doing of the future act?
Compensation for the effect of the future act on native title rights and interests is payable under
this section if there is a successful claim for compensation. Compensation is payable by the
State where the act is attributable to the State.
Part 12
Who makes the decision whether this Module applies?
There are no actual delegations to make decisions in relation to native title under the Native Title
Work Procedures, the NTA or the NTQA.
The native title assessment process is just one part of your decision-making process when
making your decision under your legislation, eg. a decision to grant a permit. By carrying out a
native title assessment, you are ensuring your decision complies with the NTA.
If the decision-maker is unsure how to proceed, your NTCO must be contacted for advice. If the
NTCO is unsure how to proceed, the NTCO must contact Aboriginal and Torres Strait Islander
Land Services for advice.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
20
If this Module does not apply to the proposed future act,
please proceed to the next Module.
eg
im
e
The Batting Order
ac
tr
s24KA
Fu
tu
re
s24JA
Module L – Low impact future acts
Module K – Facilities for services to the public
Module J – Reservations and leases
s24JAA Module JAA - Public housing and certain government
infrastructure on Indigenous land
s24HA
s24GE
s24GD
s24FA
s24NA Module M&N – Freehold test
(onshore places), acquisitions,
s24MD
mining, offshore places.
s24LA
s24IA
s24GB
Invalid future acts – see Module O
Modules IB & IC – Pre-existing right-based acts and renewals, etc
Module H – Water, living aquatic resources, airspace
Module GE – Third party rights on non-exclusive pastoral/agricultural leases
Module GD – off-farm activities directly connected to primary production
Module GB – Primary production on non-exclusive pastoral/agricultural leases
Module F – Section 24FA protection – non-claimant applications
Registered Indigenous land use agreements (see Module AC)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module J V2
Chapter 5: Future Acts
21
Department of Natural Resources and Mines
Module K
Facilities for services to the public
Date: 8 October 2015
Queensland
Government
Module K
Sections 24KA
Facilities for services to the public
DOES THE PROPOSED FUTURE ACT FIT WITHIN THIS MODULE? For this Module to apply, your proposed future act must not fall within an earlier Module.
Especially check Module JAA if your proposed future act is on Indigenous land.
This Module helps you assess whether your proposed future act either permits or is the
construction, operation, use, maintenance or repair of a facility for services to the public.
If your future act does not relate to a facility for services to the public, proceed to Module L.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
2
TABLE OF CONTENTS
Part 1
What is section 24KA? .............................................................................................. 4
Part 2
Purpose of section 24KA ........................................................................................... 5
A. Facilities and dealings that cannot proceed under Module K
Part 3
Does my future act fall within one of the listed examples in Part 4 or Part 5? ........... 5
Part 4
Facilities that are not covered by Module K ............................................................... 5
Part 5
Dealings that are not covered by Module K ............................................................... 6
B. Requirements
Part 6
Does my future act satisfy the requirements of section 24KA? ................................. 7
C. Procedural rights
Part 7
Understanding “procedural rights”............................................................................ 17
Part 8
What are the relevant “procedural rights” for my future act? ................................... 19
Part 9
How to provide the “procedural rights” ..................................................................... 22
D. Effect on native title, compensation and decision-making
Part 10
What is the effect of an act done under section 24KA on native title rights and
interests? .................................................................................................................. 25
Part 11
Is compensation payable for the doing of the future act? ........................................ 25
Part 12
Who makes the decision whether this Module applies? .......................................... 25
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
3
Part 1
What is section 24KA?
Section 24KA of the NTA deals with future acts that involve facilities for services to the public
(eg. roads, railways, bridges, etc) established for the benefit of the community as a whole.
Section 24KA of the NTA applies to your proposed future act if –
(a) it permits, or is, the construction, operation, use, maintenance or repair of one of the
facilities listed in Requirement 2 of Part 6;
AND
(b) it is operated for the general public.
It may be useful to think of these facilities as generally being linear type infrastructure (eg.
road, pipeline, bridge) and ‘up and down’ infrastructure (eg. telecommunications tower,
electricity tower, etc). However, not all section 24KA facilities fit this general categorisation.
Also, just because your proposed future act relates to one of these listed facilities does NOT
automatically mean that your proposed dealing can proceed under Module K. You must be
able to satisfy all six of the requirements in Part 6 of this Module. In particular you may
indeed have to impose conditions on any interest (eg. a lease) to fall within Module K.
Examples where section 24KA could be applicable
The dedication of an area as road under the Land Act 1994.
The declaration of an area as a State-controlled road under the
Transport Infrastructure Act 1994.
The grant of a sales permit under the Forestry Act 1959 to get quarry materials where the
sole purpose of the permit is to get quarry materials to permit or enable the
construction of a public road.
The grant of a lease to permit the construction and operation of a
telecommunications tower for the school of the air.
Examples where section 24KA is NOT applicable
Division A of this Module provides you with a quick checklist of facilities and dealings that
cannot proceed under Module K. This is not an exhaustive list.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
4
Part 2
Purpose of section 24KA
Section 24KA of the NTA ensures that services to the general public can be provided
unimpeded by native title. The provision of basic services to rural communities, in particular
remote Aboriginal communities, is a key concern. Native title should not inhibit the provision
of these services where they are for the general public, including native title holders, no
matter who provides them, provided that the affect on native title is minimal.1
This Module is set out in 4 divisions –
A. Facilities and dealings that cannot proceed under Module K;
B. Requirements;
C. Procedural rights; and
D. Effect on native title, compensation and decision-making.
A. Facilities and dealings that cannot proceed
under Module K
Part 3 Does my future act fall within one of the listed examples in
Part 4 or Part 5?
This Part provides you with a list of facilities and dealings that cannot proceed under Module
K. This is not an exhaustive list but has been placed at the front of this Module so you can
make a quick assessment as to whether Module K may or may not be applicable to your
proposed future act.
If your proposed future act falls within this list, proceed to Module L.
IMPORTANT – Just because your proposed future act is not covered by the list
does not mean Module K automatically applies. All of the requirements in Module
K must still be satisfied.
Part 4 Facilities that are not covered by Module K
The following facilities are not covered by Module K as they do not meet Requirement 2 in
Part 6 of this Module –
1
See [13.1], Explanatory Memorandum to the Commonwealth Native Title Amendment Bill 1997.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
5
Airport
Busway
Specialised bulk coal loading wharf facility
Dam
Effluent treatment facility associated with an irrigation facility
Electricity Generator
Facility that generates electricity
Petrol station
Port
Power plant
Public toilets
Sewerage treatment facility
Water treatment facility
Part 5
Dealings that are not covered by Module K
The following ‘dealings’ are not covered by Module K as they do not meet Requirement 5 in
Part 6 of this Module –

Declaring busway land and registration of the consequential perpetual lease

Declaring local government tollway corridor land and registration of consequential
perpetual lease

Declaring local government tollway

Declaring State toll road

Declaring State toll road corridor land and registration of consequential perpetual
lease

Inclusion of land into the Rail Transport Corridor Perpetual Lease
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
6
B. Requirements
Part 6 Does my future act satisfy the requirements of section
24KA?
Your proposed future act will fall within section 24KA if it satisfies ALL of the following
requirements –
Requirement 1
The proposed future act is at least partly onshore.
What is an onshore place?
The NTA makes a distinction between future acts done on an onshore place or on an
offshore place.
As a general rule, an onshore area for the State of Queensland extends down to the low
water mark and includes internal bodies of waters such as rivers, canals and heavily
enclosed bays. It would also include islands off the coast of Queensland, such as Fitzroy
Island down to the low water mark.
However, what constitutes “onshore” and what constitutes “offshore” can be a difficult
question, particularly in relation to bays. For example, coastal waters in the form of bays
enclosed within the jaws of the land forming part of the inland waters are considered
onshore. However, what is the criteria for such waters to be considered sufficiently
2
landlocked – is it the open mouth or jaws of a man or of a crocodile? The Australian Courts
continue to struggle with this question.
Therefore, you satisfy this requirement if your proposed dealing area is at least in part either–
(a) on land - mainland Queensland or an island off the coast of Queensland; or
(b) in onshore waters – waters extending down to the low water mark, or within a
watercourse or within a heavily enclosed bay.
AND
2
Justice Hill in The Fagernes ([1926] P.185 at p.189 as noted in Mary Yarmirr & Ors v The Northern
Territory of Australia & Ors [1998] 771 FCA (6 July 1998)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
7
Requirement 2
The proposed future act is in relation to one of the following facilities (listed in section
24KA(2)) –
(a) a road, railway, bridge or other transport facility (other than an airport or port);
(b) a jetty or wharf;
(c) a navigation marker or other navigational facility;
(d) an electricity transmission or distribution facility;
(e) lighting of streets or other public places;
(f) a gas transmission or distribution facility;
(g) a well, or a bore, for obtaining water;
(h) a pipeline or other water supply or reticulation facility;
(i) a drainage facility, or a levee or other device for management of water flows;
(j) an irrigation channel or other irrigation facility;
(k) a sewerage facility, other than a treatment facility;
(l) a cable, antenna, tower or other communication facility;
(la) an automatic weather station;
(m) any other thing that is similar to any one or more other things mentioned above.
Definitions for the listed section 24KA facilities
Section 24KA covers different types of facilities. A facility is something that has a specific
capability or function or is designed for a particular purpose.
The NTA does not provide definitions for the types of facilities listed in section 24KA.
Therefore, you need to consider the facilities as having their ordinary meaning. For example-

an “electricity distribution facility” is a facility that distributes electricity, eg. a powerline;

an “other device for the management of water flows” is a facility that manages the flow of
water, eg. a weir. However, the State is of the view that a dam does not fall under
section 24KA.
Excluded facilities
Large scale works (e.g. an airport, port, dam) are not intended to be included
among the facilities covered by section 24KA. Large scale works are either
likely to require exclusive possession or significantly impede access by native
title holders.3 Hence, section 24KA specifically excludes certain facilities –
3
[13.7], Explanatory Memorandum to the Commonwealth Native Title Amendment Bill 1997
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
8
airport, port or sewerage treatment facility. See the table below for examples
of other excluded facilities.
Examples
The following table provides you with examples of –
(a) facilities that fall into section 24KA; and
(b) facilities that do not fall within section 24KA.
This table is not an exclusive list of examples.
IMPORTANT – Just because a particular type of facility is listed as an example
does not mean Module K automatically applies. All of the requirements in Module
K must still be satisfied. For example, railway is listed as a facility in this
Requirement but if the proposed dealing is the grant of Rail Transport Corridor
Perpetual Lease then Module K cannot apply as Requirement 5 is not met – see
Part 5.
What if my proposed dealing has associated or incidental works?
If your proposed dealing consists of a section 24KA facility PLUS associated or
incidental works then you need to ask the following question –
Are the associated or incidental works an integral part of the section 24KA facility (as they
are required for the construction, operation, use, maintenance or repair of the facility) OR are
the works really separate facilities?
Examples

Road signage (eg. stop signs, speed limit signs) are integral to the operation of a road
and forms part of the road facility.

A maintenance shed to be constructed as part of the construction of a communications
tower is integral to the maintenance of the tower and forms part of the communications
facility.

Public toilets associated with a new boardwalk, are not necessary or integral to the
operation of the boardwalk and are a separate facility to the boardwalk facility.
s24KA
Type of facility
Examples of facilities
Facilities that are not
examples
(a)
Road, railway,
bridge, or other
 Dedicated or declared
road
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
 Airport
 Port
Chapter 5: Future Acts
9
s24KA
Type of facility
Examples of facilities
Facilities that are not
examples
transport facility
 State-controlled road
 Busway
 Bridge
 Monorail
 Tramway
 Railway
(b)
Jetty, wharf
 Pontoon
 Specialised bulk coal
 Boat-ramp
loading wharf facility
 Jetty
(c)
Navigation marker
 Buoy
or other
 Lighthouse
navigational facility
 Beacon
 Light
(d)
Electricity
 Powerline
transmission or
 Electrical transmission
distribution facility
 A facility that generates
electricity
 Power plant
line
 Electrical substation
 Electricity generator
 Underground powerlines
(e)
Lighting of streets
 Street lighting
or other public
 Lamps in parks
places
(f)
A gas transmission
 Gas pipeline
 Petrol station
or distribution
facility
(g)
A well, or a bore,
 Water well
for obtaining water
 Water bore
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
10
s24KA
Type of facility
Examples of facilities
Facilities that are not
examples
(h)
A pipeline or other
 Water pipeline
water supply or
 Outdoor public showers
reticulation facility
(i)
 Water treatment facility
(eg. at the beach)
A drainage facility,
 Levee
or a levee or other
 Weir
device for
 Drain
 Dam
management of
water flows
(j)
An irrigation
 Irrigation channel
channel or other
 Irrigation pipeline
irrigation facility
(k)
A sewerage facility,
associated with an
irrigation facility
 Sewerage pipeline
other than a
 Sewerage treatment
facility
 Public toilets
treatment facility
(l)
 Effluent treatment facility
A cable, antenna,
 Communications tower
tower or other
 Fibre-optic cable
communication
 Public telephone box
facility
 Telephone lines (above
and below ground)
(la)
An automatic
 Automatic weather station
weather station
(m)
Any other thing that
For example, a board walk is something similar to a jetty or a
is similar to any one
wharf.
or more of the
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
11
s24KA
Type of facility
Examples of facilities
Facilities that are not
examples
facilities in this
There must be some ‘likeness’ or ‘resemblance’ to one of the
column
listed facilities.
If you are not sure, contact ATSILS through your NTCO.
AND
Requirement 3
In this requirement your proposed future act must fall within one of the following (a) The proposed future act permits or requires the construction, operation, use,
maintenance or repair by or on behalf of any person of a section 24KA(2) facility;
OR
(b) The proposed future act is the construction, operation, use, maintenance or repair by
or on behalf of the State, local government body or statutory authority of the
State/Commonwealth in any of its capacities, of a section 24KA(2) facility.
The future act does not have to involve all these actions, ie. construction,
operation, use, maintenance AND repair. It could be any one of these, or a
combination of some or all.
For example, a road was constructed in 1997 but was not dedicated at that time. The local
government authority is now seeking the dedication of the constructed area as road, but
native title cannot be assessed as extinguished. Can section 24KA be used in this situation?
The answer is yes. Section 24KA may be used to dedicate the area of previously constructed
road as the dedication is a future act permitting the “operation, use, maintenance or repair” of
a facility for services to the public (ie. the road). However, section 24KA will only apply to its
operation, use, maintenance or repair from the date of dedication into the future.
What is “on behalf of” - paragraph (b)?
This means that the facility does not need to be constructed etc by the State, local
government body or statutory authority of the State or Commonwealth. In some cases, the
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
12
State may choose to use a tendering and contracting process. In this case, the facility is
constructed etc “on behalf of the State” as the State will authorise and pay for the facility, it
just chooses not to physically construct the facility.
Alternatively, where State funding is provided through a grant or grants program to a private
community group or an individual for the construction of a facility, eg. a jetty, the facility will
not be done “on behalf of” the State.
What is a “statutory authority” – paragraph (b)?
In relation to the Commonwealth or State, “statutory authority” means any authority or body
(including a corporation sole) established by a law of the Commonwealth or State other than
a general law allowing incorporation as a company or body corporate.4
NB. Government Owned Corporations (“GOCs”) are not included in this definition.5
Examples for “permits or requires” - paragraph (a)

The grant of a pipeline licence for the construction of a petroleum pipeline under the
Petroleum and Gas (Production and Safety) Act 2004.

The grant of a sales permit (including adding land into an existing sales permit) under
the Forestry Act 1959 to permit the getting of quarry materials where it is solely being
used for the upgrade or maintenance of a road.

The registration of a lease under the Land Act 1994 to permit the construction of an
automatic weather station by the Bureau of Meteorology.

The grant of a development approval under the Sustainable Planning Act 2009 to
clear vegetation for the construction of a telecommunications tower.

The registration of an easement under the Land Act 1994 to permit access to the
area for the construction and operation of a powerline.
Examples for “construction, operation, use, maintenance or repair” - paragraph (b)

The construction of a road under the Transport Infrastructure Act 1994. This Act
provides the Department of Transport and Main Roads with the power to construct,
operate, use, maintain or repair roads.
4
Section 253, NTA
All statutory GOCs have been converted to company GOCs – see Government Owned Corporations
Amendment Act 2007 which amended the Government Owned Corporations Act 1993.
5
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
13
AND
Requirement 4
The facility must be operated for the general public.
What is the general public?
The general public means the public at large as opposed to one particular individual or
company.
The fact that a private person or company is constructing a facility does not stop it
from being a facility for services to the public. Further, the requirement for payment by the
public to use or benefit from the facility does not prevent the facility being operated for the
general public.
Examples of facilities for the general public that fall within section 24KA

A jetty to be constructed and operated by a private transport company, for use by the
general public to cross a river. In contrast, a jetty constructed for a private riverside
residence would not be operated for the general public.

A telecommunications tower to be constructed by a private company to provide phone
services to the general public, ie. any of the public can sign up with the company.

A gas pipeline to be constructed by a private company to supply gas to the general
public.

The winning of a tender by a private company to construct, on behalf of the State, a
monorail to be used by the general public.

The dedication of an area as road by the State to provide dedicated access to Joe
Blogg’s property.
Examples not falling within section 24KA

The construction of a gas pipeline to solely supply a power plant.

The construction of a private railway to transport sugar cane to the mill.
AND
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
14
Requirement 5
The proposed future act does not prevent native title holders in relation to the proposed
dealing area from having reasonable access to land and waters in the vicinity of the facility –
EXCEPT
(a) while the facility is being constructed; or
(b) for reasons of health and safety.
VERY IMPORTANT
You need to consider this requirement very carefully.
If you satisfy this requirement and your proposed future act involves the grant of an
interest (eg. a lease, permit to occupy) that would normally restrict access to all others, in
order to fall within Module K, you must condition that interest as follows –
The lessee must permit native title holders reasonable access to such land or waters the
subject of the lease which are in the vicinity of the land or waters on which the [insert type of
facility] is located or to be located, except while the [inset type of facility] is being constructed,
or for reasons of health and safety. (“the condition”)
However, not every future act done under section 24KA of the NTA requires this condition.
The future act needs to be an interest that restricts access to others by giving the interest
holder the right to exclude others or control the access to, or use of, the land. For example, a
lease would generally require the condition as a lease usually gives a lessee a right to
exclude others from the leased land. This is in contrast to a road dedication or declaration
which creates immediate user rights in the public to use the area as road.
The reasons why Requirement 5 cannot be satisfied include -
1. No agreement as to use of the condition
Where you have assessed that the above condition can and must be applied but the
proposed interest holder (eg. proposed lessee) does not agree to the above condition then
Requirement 5 is not satisfied. Module K cannot be used to progress the proposed future
act.
2. The physical nature of the facility
The physical nature or sheer size of the facility prevents reasonable access to the area
covered by the facility.
For example, the Explanatory Memorandum makes it clear that
section 24KA was not intended for large scale works, hence specific exclusions for airports
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
15
and ports, as such works usually require exclusive possession or would significantly impede
access by native title holders.
Does the physical facility cover the whole of the proposed dealing area, or are the works of
such a sheer size, such that there could never be any reasonable access by native title
holders, irrespective of the above two exceptions of (a) during construction or (b) public
health and safety concerns? If you answer yes, you cannot proceed under Module K.
For example, an underground pipeline or a road would not prevent reasonable access.
Neither would a high voltage electricity tower, even where fenced, as the fencing would fall
within the public health and safety exception. However, a busway is a large-scale project in
terms of the work contemplated and scope of the land required, which is not intended to fall
within section 24KA.
3. The relevant State legislation
The relevant State legislation under which your future act is being done must not defeat this
reasonable access requirement. For example, section 329(1) of the Transport Infrastructure
Act 1994 and section 5 of the Transport Infrastructure (Busway) Regulation 2002 operate so
that a person must not enter a busway unless the person is on the bus or authorised by the
chief executive.
Therefore, the grant of a perpetual lease for a busway could not be
conditioned to allow native title holders reasonable access to the busway, as the legislation
already prevents access. In this case, Requirement 5 can never be satisfied.
Similarly, section 17 of the Transport Infrastructure (Rail) Regulation 2006 provides that a
person must not go onto a railway track unless the person is crossing the tracks from one
side to the other using a crossing, is engaged in the operation, maintenance or construction
of a railway or has the permission of the railway manager.
4. Significant policy reasons
There may be significant policy reasons as to why this reasonable access requirement
cannot be satisfied. For example, once a ‘State toll road corridor land declaration’ is made
under section 84A of the Transport Infrastructure Act 1994 (TIA), a perpetual lease must be
issued to the State (section 84C of the TIA). Although the TIA does not expressly prohibit
access by persons on declared land, there are significant policy reasons against allowing any
persons, including native title holders, on this land unless they are in a vehicle using the toll
road. In this case, Requirement 5 cannot be satisfied.
AND
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
16
Requirement 6
The proposed future act is not the compulsory acquisition of native title rights and interests
for a facility listed in section 24KA(2) – list in Requirement 2.
Example
The compulsory acquisition of native title rights and interests under the Acquisition of Land
Act 1967 for a tramway.
If your proposed future act satisfies ALL of the above 6 requirements it may proceed
under section 24KA of the NTA and is valid in relation to native title.
If your proposed future act does not satisfy ALL of the above
requirements, you must consider whether your proposed future act
falls within Module L.
You now need to take the following steps – Step 1 – Native Title Assessment Form Complete your Native Title Assessment Form – Annexure 7.1. Step 2 – Provide procedural rights
Proceed to Division C to assess what procedural rights must be provided to the relevant
native title parties.
C. Procedural rights
Part 7
Understanding “procedural rights”
Before working out what the procedural rights may be, it is important to understand what is
captured by the term “procedural rights”.
“Procedural rights" are defined in section 253 of the NTA to mean, in relation to an act(a) a right to be notified of the act; or
(b) a right to object to the act; or
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
17
(c) any other right that is available as part of the procedures that are to be followed
when it is proposed to do the act.
Procedural rights do not include all rights. For example, where the state
legislation requires that you seek the consent of a freehold owner, this is not
a procedural right but a substantive right. You are not required to provide a
substantive right under this Module.
Procedural rights are also things that occur BEFORE the future act is done.
The procedural rights relevant to the doing of the future act will be contained in –
1. The relevant State legislation – those procedural rights that must be provided
under the relevant State legislation under which the future act is done.
2. Procedural fairness – does your department or agency extend procedural fairness
(also referred to as natural justice) to affected persons when doing this type of
dealing? This question also raises the issue of whether procedural fairness should
be provided (if it is not) but this is a matter for your department or agency.
Therefore the term “procedural rights” in this Module EQUALS procedural rights under
the relevant State legislation PLUS procedural fairness.
What is procedural fairness?6
The term “procedural fairness”, or "natural justice", can be explained as a duty to observe fair
procedures when making decisions which directly and individually affect a person's rights,
interests or legitimate expectations. There is a strong presumption that procedural fairness
must be observed in the exercise of public power.
The rules of procedural fairness traditionally reduce to two:
(a) the hearing rule; and
(b) the rule against bias.
6
The explanation in this information box are extracts (with some amendments to simplify language) from Laws of
Australia accessed from Lawbook Online http://legalonline.thomson.com.au/tla/resultSummary.jsp?limit=20&tlaTitle=2.5
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
18
The hearing rule entitles a person whose interests are liable to be affected to be given notice
of relevant matters and a reasonable opportunity to present his or her case.
The rule against bias is concerned to ensure the objective appearance of impartiality and the
absence of prejudgment.
Procedural fairness requires that, before a person's interests are affected, notice should be
given of any relevant matters and an appropriate opportunity to be heard is provided.
Adequate notice necessarily extends to giving persons sufficient time to prepare their case so
that they can present it in the fullest sense.
Part 8 What are the relevant “procedural rights” for my future
act?
Now that you have an understanding of procedural rights and where to find them, assess the
relevant procedural rights for the proposed future act by answering the following questions.
Q1
Question 1
Is the proposed dealing area in whole, or in part, covered by a non-exclusive
pastoral or non-exclusive agricultural lease?
Answers to Question 1
If your answer to Question 1 (Q1) is NO, go directly to Question 2 (Q2).
If your answer to Question 1 (Q1) is YES, what procedural rights (if any) are you affording the
lessee for the doing of this future act? You now need to provide those same procedural
rights (if any) to the native title parties in accordance with the flowcharts at Part 9.
If your proposed dealing area is wholly within a non-exclusive
pastoral or agricultural lease and there are no procedural rights that
you provide to the lessee, then you can proceed with your proposed
future act.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
19
If your proposed dealing area covers more than just the non-exclusive pastoral
lease or non-exclusive agricultural lease, you will also need to answer Question 2
(Q2).
Pastoral
holding
State
Forest
Proposed dealing area
Non-exclusive agricultural lease
A lease is a non-exclusive agricultural lease if it –
(a) (i) permits the lessee to use the land or waters covered by the lease solely or primarily for
agricultural purposes (which includes the planting and growing in the land of trees,
vines or vegetables). NB. An agricultural lease also includes a lease that permits the
lessee to use the land or waters covered by the lease solely or primarily for
aquacultural purposes7;
OR
(ii) contains a statement to the effect that it is solely or primarily an agricultural lease or
that it is granted solely or primarily for agricultural purposes;
AND
(b) does not give a right of exclusive possession on the lessee or is not a Scheduled
Interest.8
Non-exclusive pastoral lease
A lease is a non-exclusive pastoral lease if it –
(a) (i) permits the lessee to use the land or waters covered by the lease solely or primarily for
maintaining or breeding sheep, cattle or other animals OR any other pastoral purpose;
OR
(ii) contains a statement to the effect that it is solely or primarily a pastoral lease or that
it is granted solely or primarily for pastoral purposes9;
AND
(b) does not give a right of exclusive possession on the lessee or is not a Scheduled
Interest.10
7
Section 247, NTA.
s247A and s247B, NTA
9
s248, NTA
10
s248A and s248B, NTA
8
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
20
Examples of non-exclusive pastoral leases

Term lease for pastoral purposes

Pastoral holding
Q2
Question 2
What procedural rights would you provide to a person holding freehold title
for the doing of this dealing?
Freehold title
The NTA describes freehold title as “ordinary title” to the land. 11 This means that the
freehold title can be granted to, or held by, any person, ie. the legislation must not dictate
who can hold the freehold title. For example, if the legislation provides that only the State
can hold the land or an Aboriginal land trust can only hold the land then it is not “ordinary
title”.
To help answer this question consider the following –

If you have a power to do this type of dealing on freehold land, what procedural rights
would you give a freehold owner?
It does not matter that you cannot do this dealing on freehold land. It
was not one of the requirements that you must satisfy in Part 6 of the
Module.

When doing this type of dealing, do you provide procedural rights to adjoining
freehold owners?
You now need to provide those same procedural rights (if any) to the native title parties in
accordance with the flowcharts at Part 9.
If there are no procedural rights that you would provide to an ordinary
freeholder, then you can proceed with the proposed future act.
11
Section 253, NTA
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
21
Part 9
How to provide the “procedural rights”
Now that you have assessed what procedural rights you must afford to the native title parties,
the following flowcharts advise you how to provide the procedural rights and to which native
title parties. You will see that as you work your way through the flowcharts the procedural
rights vary depending upon whether you have a registered native title body corporate or
registered claimants.
Remember to use QNTIME to identify the native title parties (and their
addresses) and what areas of the proposed dealing area are covered by a
registered native title claim, a determination of native title or which native title
representative body/native title service delivery agency area.
NB. Where there is a determination of native title but no registered native title body corporate
(check the details in the QNTIME entry), treat it like a registered native title claim.
Flowchart 1 shows you what to do if one of the procedural rights is a right to be notified.
Flowchart 2 shows you what to do if you need to also provide other types of procedural
rights, ie. other than a right to be notified. Such other procedural rights could include a right
to comment, a right to make submissions, a right to be consulted, etc. Where the only native
title party is the native title representative body/native title service delivery agency, instead of
providing the “other procedural rights” an opportunity to comment is provided.
Use the template at Annexure 7.3 as a basis for any notice you must provide the native title
party. Depending upon the set of procedural rights, you may need to amend the template.
For example, if the only procedural right is a right to be notified, remove the request for
comments section.
What is an opportunity to comment?
This procedural right gives the native title representative body an opportunity to
provide the decision-maker with argument and information about native title rights and
interests. The opportunity to comment is to ensure that any possible impact of the proposed
future act on native title rights and interests is considered before any decision is made to
proceed with the future act. It is not a right of veto.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
22
FLOWCHART 1 – Right to be notified
START
HERE
Provide the
notification to the
RNTBC and the
native title
representative
body / native title
service delivery
agency.
Are there any registered native title bodies corporate (RNTBC)
over the proposed dealing area? NB. There will only be an
RNTBC if there is a determination of native title.
Yes
No
Are there any
registered native title
claimants over part of
the proposed dealing
area?
Yes
Provide the notification to:
- the RNTBC; and
- the registered native
title claimants; and
- the native title
representative body /
native title service
delivery agency.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
No
Does the RNTBC/s
cover the whole of the
proposed dealing
area?
No
Are there any
registered native title
claimants over the
whole or part of the
proposed dealing
area?
No
Provide the notification
to the native title
representative body /
native title service
delivery agency.
Yes
Yes
Provide the notification
to the RNTBC.
Chapter 5: Future Acts
Provide the notification
to the registered native
title claimants AND the
native title
representative body /
native title service
delivery agency.
23
FLOWCHART 2 - Other procedural rights (ie. other than the right to be notified)
START
HERE
Yes
Provide the ‘other
procedural rights’
to the RNTBC.
Also provide an
opportunity to
comment to the
native title
representative
body / native title
service delivery
agency.
Are there any registered native title bodies corporate (RNTBC)
over the proposed dealing area? NB. There will only be an
RNTBC if there is a determination of native title.
No
Are there any
registered native title
claimants over part of
the proposed dealing
area?
Yes
Provide the ‘other
procedural rights’ to:
- the RNTBC; and
- the registered native
title claimants.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
No
Does the RNTBC/s
cover the whole of the
proposed dealing
area?
No
Are there any
registered native title
claimants over the
whole or part of the
proposed dealing
area?
No
Provide an opportunity
to comment to the
native title
representative body /
native title service
delivery agency.
Yes
Yes
Provide the ‘other
procedural rights’ to
RNTBC
the RNTBC.
Chapter 5: Future Acts
Provide the ‘other
procedural rights’ to
the registered native
title claimants.
24
D. Effect on native title, compensation and
decision-making
Part 10 What is the effect of an act done under section 24KA on native
title rights and interests?
The non-extinguishment principle applies to all future acts done under section 24KA.
This means that native title rights and interests affected by the doing of the future act continue to
exist and are not extinguished. However, while the future act exists, those native title rights and
interests inconsistent with the future act are not able to be exercised or enjoyed.
Part 11 Is compensation payable for the doing of the future act?
Compensation for the effect of the future act on native title rights and interests is payable under
this section if there is a successful claim for compensation. Compensation is payable by the
State where the act is attributable to the State, unless a law of the State provides that another
person is liable to pay the compensation.
Part 12 Who makes the decision whether this Module applies?
There are no actual delegations to make decisions in relation to native title under the Native Title
Work Procedures, the NTA or the NTQA.
The native title assessment process is just one part of your decision-making process when
making your decision under your legislation, eg. a decision to grant a permit. By carrying out a
native title assessment, you are ensuring your decision complies with the NTA.
If the decision-maker is unsure how to proceed, your NTCO must be contacted for advice. If the
NTCO is unsure how to proceed, the NTCO must contact Aboriginal and Torres Strait Islander
Land Services for advice.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
25
If this Module does not apply to the proposed future act,
please proceed to the next Module.
eg
im
e
The Batting Order
ac
tr
s24KA
Fu
tu
re
s24JA
Module L – Low impact future acts
Module K – Facilities for services to the public
Module J – Reservations and leases
s24JAA Module JAA - Public housing and certain government
infrastructure on Indigenous land
s24HA
s24GE
s24GD
s24FA
s24NA Module M&N – Freehold test
(onshore places), acquisitions,
s24MD
mining, offshore places.
s24LA
s24IA
s24GB
Invalid future acts – see Module O
Modules IB & IC – Pre-existing right-based acts and renewals, etc
Module H – Water, living aquatic resources, airspace
Module GE – Third party rights on non-exclusive pastoral/agricultural leases
Module GD – off-farm activities directly connected to primary production
Module GB – Primary production on non-exclusive pastoral/agricultural leases
Module F – Section 24FA protection – non-claimant applications
Registered Indigenous land use agreements (see Module AC)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module K V4
Chapter 5: Future Acts
26
Department of Natural Resources and Mines
Section 24KA Requirements Is the proposed dealing at least party onshore?
Does
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h}
(i}
(j}
(k)
(I)
(la)
(m)
--:::- - • Proceed to and consider
the next Module
the proposed dealing relate to one of the following facilities ­
a road , railway , bridge or other transport facility (other then an airport or port) ;
a jetty or wharf;
a navigation marker or other navigation facility;
an electricity transmission or distribution facility;
lighting of streets or other public places ;
a gas transmission or distribution facility;
a well , or a bore , for obtaining water;
a pipeline or other waler supply or reticulation facility;
a drainage facil ity. or a levee or other device for management of water flows;
an irrigation channel or other irrigation facility ;
a sewerage facility, or other than a treatment facility;
a cable antenna , tower or other communication facility;
an automatic weather station;
any other thing that is similar to the things mentioned above?
Proceed to
and consider
the next
Module
Does the proposed dealing permit or require the
construction , operation, use maintenance or repair by
or on behalf of any person? ie. Do you need a permit/
lease etc to construct etc?
Proceed to
and consider
the next
Mod ule
Does the proposed dealing consist l====~K
of the construction, operation , use
maintenance or repair by or on
behalf of [he State (in any of its
Will U,e facility be operated for
capacities), local government body
the gene r al public?
o r o ther s tatutory authority of the
Crown? ie. Do you have a source of
authority o r a right to construct?
Does the proposed dealing prevent
native title holders in relation to the
proposed dealing area, from having
reasonable access to such land or
waters in the vicinity of the facility?
Only while the
facility is being
constructed?
No
For reasons of
health and safety?
Proceed
lo and
consider
the next
Module
Section 24KA applies to
the proposed dealing
Proceed to and consider
the next Module
_::,- ----11 1!
Proceed to and consider
the next Module
Is the proposed dealing the
compulsory acquisiLion of native
title rights and interests?
No
Proceed to and consider
the next Module
Go to Division C of Module K to
understand and assess what prooedural
rights apply to your proposed dealing
Queensland Government Department of Natural Resources and Mines
Module L
Low Impact Future Acts
Date: 8 October 2015
Queensland
Government
Module L
Section 24LA
Low Impact Future Acts
DOES THE PROPOSED FUTURE ACT FIT WITHIN THIS MODULE? This Module will help you assess whether your proposed future act
is a low impact future act.
A low impact future act is an act considered to be low impact in
nature and must be capable of being stopped should a
determination of native title be made in relation to the particular
future act area.
For this Module to apply, your proposed future act must not have
fallen within a preceding Module.
If your proposed future act is not a low impact future act, then you
will need to proceed to Module M&N.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module L V2
Chapter 5: Future Acts
2
TABLE OF CONTENTS
Part 1
What is section 24LA? ..................................................................................................... 4 A.
Identifying low impact future acts................................................................................ 5 Part 2
Is my proposed future act a low impact future act? ......................................................... 5 Part 3
Exclusions - acts that are not low impact future acts ....................................................... 8 Part 4
Exceptions to the exclusions at Part 3 – acts that are low impact future acts ................. 9 B.
Effect on native title, compensation and decision-making……………….……….
Part 5
Does the non-extinguishment principle apply? .............................................................. 11 Part 6
Is compensation payable for the doing of the future act? .............................................. 11 Part 7
Who makes the decision whether this module applies? ................................................ 11 Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module L V2
Chapter 5: Future Acts
11 3
Part 1
What is section 24LA?
Section 24LA applies to proposed future acts that are considered to be low impact future acts.
Section 24LA states what is NOT a low impact future act rather than what IS a low impact future
act, that is, the act 
must NOT continue after a determination that native title exists, ie. it must be capable of
being stopped upon a determination of native title;
AND

must NOT consist of, or relate to, a number of different acts, ie. it must not fall into one of the
exclusions.
Examples of low impact future acts

the grant of a permit to occupy for a television production;

placing reference markers in an area for survey purposes;

the grant of a licence to collect firewood;

the grant of a temporary permit to conduct bee-keeping;

the construction of a building that is not a fixture, eg. a demountable shed;

the establishment of walking track signs.
The requirement that a low impact future act must not continue after a determination of native
title suggests that section 24LA is more appropriate for temporary or intermittent activities
as opposed to long-term activities. Therefore, you will need to carefully consider whether this
Module is suitable for your proposed future act, even though it may satisfy the requirements in
Part 2 of this Module.
Example
Dedicating an area of land as a State Forest is not a temporary activity but is more long-term in
nature. For example, in order to revoke such dedications a resolution must be passed by the
Legislative Assembly (having been given a specified number of days notice) requesting the
Governor in Council to revoke the dedication. The Governor in Council then must decide
whether the dedication should be revoked and if so this must be done by regulation.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module L V2
Chapter 5: Future Acts
4
Further, dedicating an area whether as a reserve of State Forest, a reserve under the Land Act
1994 or State Forest (“reserve”) as a low impact future act means that the ONLY acts that can
be done on the reserve in accordance with the reserve are other low impact future acts or acts
done under a registered Indigenous Land Use Agreement (“ILUA”).1
Therefore, section 24LA is not appropriate even though the dedication would meet the
requirements in Part 2 of this Module.
If the dedication proceeded as a low impact future act it would need to be cancelled upon a
determination of native title unless an agreement via a registered ILUA has been reached before
the making of the determination or the area is negotiated to be excluded from the determination
area.
In contrast, the grant of a permit to occupy for a television production is temporary in nature, i.e.
length of the setting up and filming. Therefore, section 24LA is appropriate. As the future act
met the requirements of Part 2 of this Module, it was able to proceed as a low impact future act.
This Module is divided into the following divisions –
A. Identifying low impact future acts
B. Effect on native title, compensation and decision-making
A. Identifying Low Impact Future Acts
Part 2
Is my proposed future act a low impact future act?
Your proposed future act can proceed as a low impact future act under section 24LA if you are
able to satisfy each of the following requirements –
Please refer to
the
accompanying
flowchart.
Requirement 1
There has been no approved determination that native title exists over the proposed future act
area.
1
However, where you are not relying on the fact that the area is a reserve in
order to do the act, then you are not so limited, eg. if your act is the construction of a pipeline which will traverse a
number of tenures including the low impact future act reserve, it can be constructed over the reserve if done under
section 24KA of the NTA and the requirements of section 24KA are satisfied.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module L V2
Chapter 5: Future Acts
5
Definition – approved determination of native title
An approved determination of native title is a decision made by the Federal Court or High Court
that native title does or does not exist over a particular area of land or waters.
If the approved determination of native title is that native title exists, then section 24LA can NOT
be used.
If the approved determination of native title is that native title does NOT exist, then your dealing
is not a future act – Module AD. Your dealing can proceed without further reference to native
title.
AND
Requirement 2
Your proposed future act must be capable of being stopped if a determination is made that
native title exists over the area covered by the future act. Your future act cannot continue after
the making of an approved determination of native title.
Example – capable of being stopped
A permit to occupy is capable of being stopped as it is terminable at will, ie. there is not a
specific time period that must be given to the permit holders to terminate the permit to occupy.
In contrast, if land was dedicated as a State Forest as a low impact future act, it would require
the Legislative Assembly (on a motion of which at least 14 sitting days notice has been given) to
pass a resolution requesting the Governor in Council to revoke the dedication. The Governor in
Council then must decide whether the dedication should be revoked and if so this must be done
by regulation.
2
AND
Requirement 3
Your proposed future act is not specifically excluded from being a low impact future act.
These specific exclusions are listed in Part 3. If your proposed future act falls into one of these
exclusions, you then must check whether it falls into one of the exceptions to that exclusion as
outlined in Part 4. If it falls into an exception and you have also satisfied Requirement 1 and
Requirement 2 above, then it can proceed as low impact future act.
2
Section 26, Forestry Act 1959
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module L V2
Chapter 5: Future Acts
6
Example – exclusions and exceptions
The grant of a mining lease cannot proceed as a low impact future act as mining falls into one of
the exclusions. However, an exception to the mining exclusion is fossicking with hand held
implements. If your future act is fossicking with hand held implements and you have satisfied
Requirement 1 and Requirement 2 above, then it can proceed as a low impact future act.
If your future act satisfies ALL of the above criteria then it is a low impact future act under section 24LA of the NTA and will be valid in relation to native title. There are no procedural
rights that must be provided to the native title parties. You should now take the following
steps – Step 1 Complete your Native Title Assessment Form – Annexure 7.1. Step 2
If your proposed future act is the grant of a licence, permit or authority you will need to include
the following wording (or similar) as a condition of the licence, permit or authority Should it be determined at some future date by any Court that native title exists over the
subject land or waters, this [insert licence, permit or authority] may be terminated and the
[insert licensee, permit holder or authority holder] (or any subsequent [insert licensee,
permit holder or authority holder]) may be required to remove any works established under
this [insert licence, permit or authority] at the [insert licensee’s, permit holder’s or authority
holder’s] (or any subsequent [insert licensee’s, permit holder’s or authority holder’s]) own
cost, expense and risk. In that event, no compensation for works, development costs or
loss of income shall be payable to the [insert licensee, permit holder or authority holder]
(or any subsequent [insert licensee, permit holder or authority holder]) by the State of
Queensland.
If your future act does not satisfy ALL of the above requirements you must
consider whether your future act is caught by Module M.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module L V2
Chapter 5: Future Acts
7
Part 3
Exclusions - acts that are not low impact future acts
If your proposed future act consists of, authorises or otherwise involves ANY one of the
following, then it can NOT proceed as a low impact future act UNLESS it falls into the exception
for the particular exclusion as outlined in Part 4 –
(a) the grant of a freehold estate in any of the land or waters;
(b) the grant of a lease over any of the land or waters;
(c) the conferral of a right of exclusive possession over any of the land or waters;
NB. This means the conferral of a right to exclude all others from a particular area of land or
waters.
(d) the excavation or clearing of any of the land or waters;
Definitions
“excavate”
The Oxford Dictionary and Thesaurus defines “excavate” as make (a hole or channel) by
digging, dig out material from (the ground); reveal or extract by digging; dig systematically into
the ground to explore. Therefore, for example, the digging of holes for plants is excavation.
“clearing”
The Oxford Dictionary and Thesaurus defines “clearing” as including “an area in a forest cleared
for cultivation”.
Examples

Excavation for the construction of a dam on a particular area of land.

The clearing of a hectare of bush for the purpose of selling the timber to a wood chip
company.
(e) mining;
Example
The grant of a mining lease to Goldtin Ltd.
(f) the construction or placing on the land, or in the waters, of any building, structure, or other
thing, that is a fixture;
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module L V2
Chapter 5: Future Acts
8
Definition - Fixture
A fixture is an item attached to the ground other than under its own weight. An item which is a
fixture ceases to be the personal property of the person who attached it to the land as the item
becomes part of the land.
It is difficult to always know whether something is a fixture. For example, office partitions which
were not just sitting on the floor by their own weight but were secured to the floor and walls by
nails and bolts were held by the Federal Court not to be a fixture.3 However, the general rule in
relation to fixtures is where something is affixed to the land even slightly it is to be considered as
part of the land, unless the circumstances are such as to show that it was intended all along to
continue as a personal possession.4
Example
A demountable, eg. a ranger’s hut, is a building that just sits on the ground and therefore is
unlikely to be a fixture as it is not attached to the ground. It is likely to be considered a fixture
when it is attached to the ground by cementing the stumps to the ground and/ an electricity
line/sewerage pipes/water pipes are attached to the demountable.
(g) the disposal or storing, on the land or in the waters, of any garbage or any poisonous, toxic
or hazardous substance.
Examples

The establishment of a rubbish dump.

The construction of a tailings dam.

The piling of drums full of toxic waste on a particular area of land.
Part 4 Exceptions to the exclusions at Part 3 – acts that are low
impact future acts
The following acts are specifically mentioned in section 24LA as exceptions to the excluded acts
set out at Part 3 –
3
4
Ball-Guymer v Livantes (1990) 102 FLR 327
Holland v Hodgson (1872) LR 7 CP 328; [1861-73] All ER Rep 237
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module L V2
Chapter 5: Future Acts
9
Exception to mining exclusion
If your proposed future act was caught in the mining exclusion in Part 3 but your proposed future
act is fossicking by using hand-held implements, then your proposed future act is not
excluded and may proceed as a low impact future act.
Exception to construction exclusion
If your proposed future act was caught in the construction exclusion in Part 3 but your proposed
future act is the construction of a fence or a gate, then your proposed future act is not
excluded and may proceed as a low impact future act.
Exceptions to excavation/clearing exclusion
If your proposed future act was caught in the excavation/clearing exclusion in Part 3 but your
proposed future act is one of the following, then your proposed future act is not excluded and
may proceed as a low impact future act 
excavation or clearing that is reasonably necessary for the protection of public health or
public safety;
Example
The removal of earth that may present a landslide hazard to a road adjacent to the land or
waters.5
The removal of tailings from an old mine site.
The construction of a firebreak using earthmoving equipment.

tree lopping;
Example
Removing a branch of a tree overhanging a public place.

clearing of noxious or introduced animal or plant species;
Example
Using chemicals (eg. fogging) to kill mosquito larvae OR cutting down rubber vine.

foreshore reclamation;
Example
The dumping of sand to restore an eroded beach. 2
Works for the purpose of foreshore restoration or protection.
5
Explanatory Memorandum to the Native Title Amendment Bill 1997, Table 14.1, page 140.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module L V2
Chapter 5: Future Acts
10

regeneration or environmental assessment or protection activities.
Example
The planting of native trees or the protection of streambeds from erosion. 2
B. Effect on Native Title, Compensation and
Decision-Making
Part 5
Does the non-extinguishment principle apply?
Yes, the non-extinguishment principle applies to all future acts that proceed under section 24LA.
This means that native title rights and interests affected by the doing of the future act continue to
exist and are not extinguished. However, while the future act exists, those native title rights and
interests have no effect on the future act.
Part 6
Is compensation payable for the doing of the future act?
There is NO compensation payable under this section for the effect of the future act on native
title rights and interests.
Part 7
Who makes the decision whether this module applies?
There are no actual delegations to make decisions in relation to native title under the Native Title
Work Procedures, the NTA or the NTQA.
The native title assessment process is just one part of your decision-making process when
making your decision under your legislation, eg. a decision to grant a permit. By carrying out a
native title assessment, you are ensuring your decision complies with the NTA.
If the decision-maker is unsure how to proceed, your NTCO must be contacted for advice. If the
NTCO is unsure how to proceed, the NTCO must contact Aboriginal and Torres Strait Islander
Land Services for advice.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module L V2
Chapter 5: Future Acts
11
If this Module does not apply to the proposed future act,
please proceed to the next Module.
eg
im
e
The Batting Order
s24LA
ac
tr
Fu
tu
re
s24JA
Module L – Low impact future acts
Module K – Facilities for services to the public
Module J – Reservations and leases
s24JAA Module JAA - Public housing and certain government
infrastructure on Indigenous land
s24IA
Modules IB & IC – Pre-existing right-based acts and renewals, etc
s24GE
s24GD
s24FA
s24NA Module M&N – Freehold test
(onshore places), acquisitions,
s24MD
mining, offshore places.
s24KA
s24HA
s24GB
Invalid future acts – see Module O
Module H – Water, living aquatic resources, airspace
Module GE – Third party rights on non-exclusive pastoral/agricultural leases
Module GD – off-farm activities directly connected to primary production
Module GB – Primary production on non-exclusive pastoral/agricultural leases
Module F – Section 24FA protection – non-claimant applications
Registered Indigenous land use agreements (see Module AC)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module L V2
Chapter 5: Future Acts
12
Module L
Low Impact Future Acts
Is there an approved determination that
native title exists over the proposed
future act area? [2]
YES
Proceed to and consider
next Module
NO
Proceed to and consider
next Module
NO
Is the proposed future act capable of
being stopped if an approved
determination of native title is made over
the proposed future act area?[2]
YES
Does the proposed future act fall into one
of the exclusions set down in Part 3?[2] &
[3]
NO
Your proposed future act is a low
impact future act under section
24LA. If you decide to proceed
with your proposed future act, your
future act is valid.
NO
Proceed to and consider next
Module
YES
Does the proposed future act fall into one
of the exceptions to the
exclusions set down in Part 4?
[2] & [4]
YES
Your proposed future act is a low impact
future act under section 24LA. If you
decide to proceed with your proposed
future act, your future act is valid.
Key
[ ] = Parts in Module
Department of Natura l Resources and Mines
Module M&N
Future acts at the end of the batting order
Date: 8 October 2015
•
Queensland
Government
Module M&N
Sections 24MA – 24MD and section 24NA
Future acts at the end of the batting order
DOES THE PROPOSED FUTURE ACT FIT WITHIN THIS MODULE? You have reached the end of the batting order. This means that your proposed
future act did not fall within a preceding Module.
If your proposed future act does not fall within this Module, then it will be invalid
as against native title (Module O) unless you proceed by way of –
(a) a registered Indigenous Land Use Agreement (Module Q); or
(b) a non-claimant application (Module R), where applicable.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
2
TABLE OF CONTENTS
Part 1
What future acts are covered by this Module? ................................................................................ 4
Division A – A series of decisions to make your assessment
Part 2
How do I use this Module? .............................................................................................................. 4
Decision 1 Location - Is your proposed future act in relation to an onshore or offshore area? ........................ 8
Decision 2 Type of dealing - Is your proposed future act a legislative or non-legislative act? ......................... 9
Decision 3 Applicable Test - Which of the four tests (if any) applies to your proposed future act? ................ 10
Decision 4 Categorising and subcategorising your proposed future act.......................................................... 15
Decision 5 Assessing the procedural rights type for your proposed future act ................................................ 24
Division B - Effect on native title, compensation and decision-making
Part 3
What is the effect on native title rights and interests by an act done under this Module? ............ 37
Part 4
Is compensation payable for the doing of the future act? ............................................................. 38
Part 5
Who makes the decision whether this module applies? ............................................................... 38
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
3
Part 1
What future acts are covered by this Module?
This Module covers a future act that did not fall within a preceding Module and which passes at least one of the four Tests set out in Division A below.
If your proposed future act does not pass any of these tests, it will be invalid as against native title (Module O) unless you proceed by way of –
(a) a registered Indigenous Land Use Agreement (Module Q);
or
(b) a non-claimant application (Module R) where that option is available.
This Module is set out in 2 Divisions –
A. A series of decisions to make your assessment
B. Effect on native title, compensation and decision-making
Division A – A series of decisions to make your assessment
Part 2
How do I use this Module?
The Decision boxes set out in this Part are a series of decisions that will help you decide whether:
(a) this Module applies to your proposed future act; and
(b) if so, what procedural rights must be afforded to the native title parties.
You will need to work through each of the decision boxes in order. Each decision box points you to where more information, explanations and examples
can be found to assist you in making the decision for that box.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
4
Decision 1 – Assess whether your proposed dealing area is within an onshore area or an offshore area.
Go to page 7 for information to help with your decision.
Decision 2 – Assess whether your proposed future act is a legislative or non-legislative act.
Go to page 8 for information to help with your decision.
Decision 3 – Based upon your assessments in Decision 1 and Decision 2, decide which of the following tests apply …
Your assessments from Decisions 1 and 2 …
Applicable Test
Onshore legislative
Onshore non-legislative AND proposed dealing area is on land
Onshore non-legislative AND proposed dealing area is within waters
Offshore legislative
Offshore non-legislative
C
A
B
D
D
Go to page 9 for Test A, page 11 for Test B, page 12 for Test C and page 14 for Test D.
If your proposed future act does not pass the applicable test this Module does not apply. Proceed to Module O.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
5
Decision 4 – Now that your proposed future act has passed one of the above tests, assess which category and subcategory its falls within;
Category
Subcategory
1 – Mining or associated with mining within an onshore area
1 - Creation of a new right to mine
2 - Variation of a right to mine to extend the area
3 - Renewal etc. of a right to mine that does not increase rights or extends the area
4 - Renewal etc of a right to mine that increases rights or extends the area
5 - Construction of an infrastructure facility associated with mining
2 – Compulsory acquisition within an onshore area
1 - For the State, statutory authority of the Crown or a local authority
2 - For a third party for the acquisition of an infrastructure facility
3 - For a third party but not for an infrastructure facility
3 – All other future acts on an onshore area
No subcategories
4 – Future acts done on offshore areas
No subcategories
Go to page 15 for explanations and examples for these categories and subcategories.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
6
Decision 5 – Based upon your assessment for Decision 4 as to which category and subcategory (classification) is applicable to your proposed future act,
look at the table below to see which procedural rights type applies to your classification.
Decision 4 Classification
Category
Procedural rights type
Subcategory
1
C
2
C
3
A
4
C
Go to page 23 for an explanation of
“procedural rights” and for an explanation of
each “procedural rights type” go to –
1
5
A
1




page 25 for A
page 30 for B
page 31 for C
page 32 for D.
B
A
2
2
A
B
3
C
3
No subcategory
A
4
No subcategory
D
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
7
Decision 1
Location - Is your proposed future act in relation to an onshore or offshore area?
The NTA makes a distinction between future acts done on an onshore area or an offshore area.
As a general rule, an onshore area for the State of Queensland extends down to the low water mark and includes internal bodies of waters such as rivers,
canals and heavily enclosed bays. It would also include islands off the coast of Queensland, such as Fitzroy Island down to the low water mark.
However, what constitutes “onshore” and what constitutes “offshore” can be a difficult question, particularly in relation to bays. For example, coastal waters
in the form of bays enclosed within the jaws of the land forming part of the inland waters are considered onshore. However, what is the criteria for such
waters to be considered sufficiently landlocked – is it the open mouth or jaws of a man or of a crocodile?1 The Australian Courts continue to struggle with
this question.
Question
Is your proposed dealing area –
In some cases, your proposed future act may
(a) on land - mainland Queensland or an island off the coast of Queensland? or
fall within both an onshore area and an
(b) in onshore waters – waters extending down to the low water mark, or within a watercourse
offshore area. If this is the case, go through
the decision series first for the onshore area
or within a heavily enclosed bay?
part of the proposed dealing area, then go
If your answer is YES – your answer for DECISION 1 is ONSHORE.
through the steps again for the offshore part
If your answer is NO – your answer for DECISION 1 is OFFSHORE. of the proposed dealing area.
N.B. If you are not sure please contact ATSILS through your NTCO for advice.
1
Justice Hill in The Fagernes, L.R. [1926] P.185 at p.189 - noted in Mary Yarmirr & Ors v The Northern Territory of Australia & Ors [1998] 771 FCA (6 July 1998)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
8
Decision 2
Type of dealing - Is your proposed future act a legislative or non-legislative act?
The NTA also makes a distinction between future acts that are legislative and those that are not, ie. non-legislative.
Legislative acts are the making of new legislation, amending existing legislation or repealing existing legislation.
The term “legislation” includes –

Acts, eg. Mineral Resources Act 1989; and

Subordinate Legislation, eg. Regulations, certain statutory instruments.
Making legislation is the enactment of a Bill as an Act, or the making by the Governor in Council of subordinate legislation. Amending legislation is making changes to existing legislation through the enactment of an amending Bill or the amending by the Governor in Council of subordinate legislation.
Repealing legislation is causing existing legislation to cease to have effect. If you are unsure if your proposed future act is a “legislative act” contact your department’s/agency’s legal area or ATSILS through your NTCO.
IMPORTANT
Remember for this Module to apply the making, amendment or repeal of legislation still must be a future act (i.e. an act that affects native title). If the
legislation is simply regulating how a future activity takes place, e.g. by putting in place a permitting regime, then the legislation is not likely to be a future
act. In this case, it is the subsequent grant of a permit under the permitting regime (the legislation) that is the future act.
If you are unsure whether the making, amendment or repeal of legislation is a future act, contact ATSILS through your NTCO.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
9
Non-legislative future acts are usually done under legislation that provides the power to do the future act.
Some examples of non-legislative future acts include 
The grant of a mining lease under the Mineral Resources Act 1989.

The grant of a trustee lease over a reserve for jetty purposes (gazetted in 2000) under the Land Act 1994.

The compulsory acquisition of native title rights and interests for a new school under the Acquisition of Land Act 1967.
Question
Is your proposed future act legislative or non-legislative in nature?
If your answer is LEGISLATIVE – your answer to DECISION 2 is LEGISLATIVE.
If your answer is NON-LEGISLATIVE – your answer to DECISION 2 is NON-LEGISLATIVE. Decision 3
Applicable test - Which of the four Tests (if any) applies to your proposed future act?
In order for your proposed future act to fall within this Module it must pass at least one of the following four Tests. Use Decision Box 3 (page 4) to assess
which Test may be applicable to your proposed future act.
Test A
For your proposed future act to pass Test A the proposed dealing must be capable of being done in relation to the land over the proposed dealing area
assuming the native title holders instead held freehold title over the proposed dealing area.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
10
What does this mean?
This means that the legislation you are operating under must allow you to do the future act on freehold land. You must be able to answer YES to the
following question –
If my proposed dealing area was instead freehold land able to be held by anyone (ie. pretend it is freehold land), would the legislation I am operating
under allow me to do the proposed future act on that freehold land?
For example, the grant of a mining lease passes this test, as a mining lease can be granted over freehold land. In contrast, the grant of a lease under the
Land Act 1994 does not pass the freehold test as that type of lease cannot be granted over freehold land.
“freehold title”
The NTA describes this as “ordinary title” to the land. 2 This means that the freehold title must be an estate in fee simple in the land that can be granted to
or held by any person, ie. the legislation must not dictate who can hold the freehold title. For example, if the legislation provides that only the State can
hold the land, or an Aboriginal land trust can only hold the land, then it is not “ordinary title”.
If your future act satisfies the above requirement it passes Test A. Proceed to Decision Box 4 at page 5 to assess which category, subcategory and procedural rights apply to your proposed future act. 2
Section 253, NTA
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
11
Test B For your proposed future act to pass Test B the proposed dealing area must be – (a)
in relation to waters only, eg. in a river, an area below high water mark, etc; and
(b)
capable of being done in relation to the waters concerned if the native title holders instead
held freehold title to the land adjoining, or surrounding, the waters.
What does this mean?
This means that the legislation authorising the proposed future act over the waters (ie. the proposed dealing area covers waters) does not prohibit the
doing of that future act in waters adjoining or surrounding freehold land. You must be able to answer NO to the following questionDoes the legislation authorising the proposed future act prohibit the future act being done in waters adjoining or surrounding freehold land?
For example, if the legislation allows the State to construct a floating pontoon in waters but prohibits it being constructed in waters adjacent to freehold
land, then the future act does not pass this test.
“waters”3
“waters” includes:
(a) sea, river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters;
(b) the bed or subsoil under, or airspace over, any waters (including waters mentioned in (a)); or
(c) the shore, or subsoil under or airspace over the shore, between high water and low water.
If your future act satisfies the above requirement it passes Test B. Proceed to Decision Box 4 at page 5 to assess which category, subcategory
and procedural rights apply to your proposed future act.
3
Section 253, NTA
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
12
Test C For your proposed future act to pass Test C, it must either – (a)
apply to the native title holders in the same way as it would if they instead held freehold title
Act of
Parliament
to the land (or to the land adjoining, or surrounding, the waters) affected;
What does this mean?
The Explanatory Memorandum4 explains that this requirement is generally intended to cover a legislative act that creates a law of a particular kind, eg. the
making of legislation that permits mining on freehold land and non-freehold land.
To comply with this requirement, the legislation must –
(a) at least apply to freehold land or be ‘tenure blind’ (applies to all tenures), eg. the legislation cannot provide that a mining lease can only be granted over
non-freehold land; and
(b) provide native title holders with the same rights that a freeholder receives, eg. a freehold owner must not receive special treatment under the legislation
that is not also extended to any other affected parties including native title holders.
freehold title” 5
The NTA describes this as “ordinary title” to the land. This means that the freehold title must be an estate in fee simple in the land that can be granted to
or held by any person, ie. the legislation must not dictate who can hold the freehold title. For example, if the legislation provides that only the State can hold
the land, or an Aboriginal land trust can only hold the land, then it is not “ordinary title”.
“waters”6
“waters” includes:
4
Table 15.1, Explanatory Memorandum to the Native Title Amendment Bill 1997
Section 253, NTA
6
Section 253, NTA
5
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
13
(a)
sea, river, a lake, a tidal inlet, a bay, an estuary, a harbour or subterranean waters;
(b)
the bed or subsoil under, or airspace over, any waters (including waters mentioned in (a)); or
(c)
the shore, or subsoil under or airspace over the shore, between high water and low water.
OR
(b)
not cause the native title holders to be in a more disadvantageous position at law than they would be if they instead held freehold title to the land
(or to the land adjoining, or surrounding, the waters).
What does this mean?
The Explanatory Memorandum7 explains that this requirement is intended to cover a legislative act that amends existing legislation so that it can apply to
land or waters over which native title exists, eg. the amendment of legislation that permits mining on land that is subject to freehold title so that once
amended it will also permit mining, on the same terms, on non-freehold land.
In this case, the native title holders are not in a more disadvantageous position than a freeholder.
In contrast, an amendment to legislation to prevent mining only on freehold land would place native title holders in a more disadvantageous position than a
freeholder, as it would continue to allow mining on land over where native title continues to exist.
If your future act satisfies the above requirement, it passes Test C. Proceed to Decision Box 4 (at page 5) to assess which procedural rights apply to your proposed future act. 7
Table 15.1, Explanatory Memorandum to the Native Title Amendment Bill 1997
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
14
Test D
For your proposed future act to pass Test D the only requirement is that the proposed dealing area only relates to an offshore area. There are no other
requirements.
If your future act satisfies the above requirement, it passes Test D. Proceed to Decision Box 4 (at page 5) to assess which procedural rights apply to your proposed future act. If your proposed future act does not pass any of the Tests in Step 3, proceed to Module O.
Decision 4 Categorising and subcategorising your proposed future act
Now that your proposed future act has passed one of the Tests in Decision 3, you need to decide which category and subcategory applies to your
proposed future act. Use Decision Box 4 (page 5) to see which of the following four categories, and relevant subcategories, may be applicable.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
15
Example
Your proposed future act is the grant of a mining lease under section 234(1)(b) of the Mineral Resources Act 1989 to permit the construction of an
infrastructure facility associated with mining.
The future act takes place onshore (Decision 1), is non-legislative in nature and relates to land (Decision 2) and has passed Test A (Decision 3). Decision
Box 4 suggests that your proposed future act falls within Category 1 Subcategory 5.
Now that you think you know the applicable category and subcategory, read through the explanation and examples below to confirm your preliminary
assessment.
Category 1 - Mining or associated with mining
To fall within this category, the proposed future act must either –
(a) create, vary or renew etc a right to mine; or
(b) involve the construction of an “infrastructure facility” associated with mining.
The definition of “mine”8 includes –
(a) explore or prospect for things that may be mined (including things covered by that expression because of paragraphs (b) and (c); or
(b) extract petroleum or gas from land or from the bed or subsoil under waters; or
(c) quarry;
8
Section 253, NTA
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
16
but does not include extract, obtain or remove sand, gravel, rocks or soil from the natural surface of land, or of the bed beneath waters, for a purpose other
than:
(d) extracting, producing or refining minerals from the sand, gravel, rocks or sol; or
(e) processing the sand, gravel, rocks or soil by non-mechanical mean.
The definition of “infrastructure facility”9 includes any of the following –
(a)
a road, railway, bridge or other transport facility;
(b)
a jetty or port;
(c)
an airport or landing strip;
(d)
an electricity generation, transmission or distribution facility;
(e)
a storage, distribution or gathering or other transmission facility for:
(i) oil or gas; or
(ii) derivatives of oil or gas;
(f)
a storage or transportation facility for coal, any other mineral or any mineral concentrate;
(g)
a dam, pipeline, channel or other water management, distribution or reticulation facility;
(h)
a cable, antenna, tower or other communication facility;
(i)
any other thing that is similar to any or all of the things mentioned in paragraphs (a) to (h) and that the Commonwealth Minister determines, by
legislative instrument, to be an infrastructure facility for the purposes of this paragraph.
9
Section 253, NTA
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
17
Sub-category
C
1. Creation of a new right to mine
Examples

The grant of a mining lease to Minerals Incorporated Pty Ltd.

The making of a special Act of Parliament automatically granting a mining
A
T
2. Variation of a right to mine to

3. Renewal etc of a right to mine
The amendment of a mining lease to extend the original area from 1 ha
C
to 2 ha.
G
R
The grant of a sales permit for quarrying that permits quarrying beyond
the natural surface of the land.
extend the area
O
C
lease to Western Coal Ltd.

E
Procedural rights type

that –
The renewal of a mining lease originally granted in 2000 under the right
to negotiate provisions of the NTA where the renewal does not extend
A
the area, the term or create additional rights.
(a) does NOT fall within sub-
Y
category 2 above and Module
For section 26D of the NTA to apply –
IC;
(a)
the original grant must have been validly granted on or before 23
but
December 1996 or have been validly granted under the right to
(b) falls within section 26D, NTA.
negotiate provisions; and
1
(b)
the area is not extended;
(c)
the term is not extended, ie. if the original grant was for 10 years the
renewed term cannot be for 12 years; and
(d)
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
no additional rights are created.
Chapter 5: Future Acts
18
C
4. Renewal etc of a right to mine
A
(a) subcategories 2 & 3 above;

that does NOT fall within –
The extension of the term of a sales permit for quarrying originally
granted in 2002 under the right to negotiate provisions that will also
extend the area of the sales permit from 1 to 2 hectares.
C
Capricornia Coal Ltd currently has a mining lease for the extraction
A
(b) Module IC; and
T
(c) section 26D, NTA.
E
5. Construction of an
infrastructure facility
G

associated with mining
of coal. It made an application for the grant of a mining lease under
section 234(1)(b) of the Mineral Resources Act 1989 on an adjoining
O
area to allow the construction of a coal transport facility. A coal
R
transport facility falls within the definition of “infrastructure facility”.
Y
provide transport for the raw coal extracted from the adjoining
and
It is a facility that is associated with mining as the facility will
B
mining lease to another area where a wash plant is located.
1
Category 2 - Compulsory Acquisition
For your proposed future act to fall within this category –
(1) the compulsory acquisition of the whole or part of any native title rights and interests must be done under a law of the
Commonwealth or State that permits both –
(a) the compulsory acquisition by the State of native title rights and interests;
Notice of
Intention
to Resume
and
(b) the compulsory acquisition by the State of non-native title rights and interests in relation to land or waters.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
19
For example, the compulsory acquisition is done under the - 10

Acquisition of Land Act 1967

Electricity Act 1994

Petroleum and Gas (Production and Safety) Act 2004

State Development and Public Works Organisation Act 1971

Transport (Gladstone East End to Harbour Corridor) Act 1996

Transport Planning and Coordination Act 1994
AND
(2) the whole, or equivalent part, of all non-native title rights and interests, in relation to the proposed dealing area, will also be acquired (whether
compulsorily or by surrender, cancellation or resumption or otherwise) in connection with the compulsory acquisition of native title rights and interests;
Example
The State wishes to use part of an area of a current pastoral lease adjoining the town for the construction of a country health clinic. Native title has not
been wholly extinguished over the pastoral lease and therefore the State will need to acquire any native title rights and interests existing over that area of
the pastoral lease under the Acquisition of Land Act 1967. However, section 24MD makes it clear that the non-native title rights and interests must also be
acquired. Therefore, the State will also need to resume the leasehold interests over that area under the Land Act 1994 to satisfy this request. It would also
be an option for the State to seek from the lessee the voluntary surrender of the area from the lease. In which case there would be an no other interests
over the area at the time native title was compulsorily acquired.
AND
(3) the practices and procedures in acquiring the native title rights and interests do not cause the native title holders to be at any greater disadvantage than
the holders of non-native title rights and interests when their rights and interests are acquired.
10
Section 144, Native Title (Queensland) Act 1993
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
20
“practices and procedures”
This is more than affording the same procedural rights. It means that the same opportunities must be afforded. The State needs to treat all people the
same. For example, if within a compulsory acquisition process the State pays for an affected person’s travel costs, so they can have their objections heard,
or sends officers out to meet with affected parties, the State must also extend these practices to the native title holders.
C
A
T
Sub-category
1. For the State, statutory authority of
Examples

the Crown or local authority
The compulsory acquisition of native title and interests by the State
under the Acquisition of Land Act 1967 for a new hospital for
Procedural rights type
A
Queensland Health.
E
G
O
2. For a third party for the acquisition of

The compulsory acquisition of native title and interests by the State
R
an infrastructure facility defined in
under the State Development and Public Works Organisation Act 1971
Y
section 253 of the NTA.
for Air Express Limited to enable the construction of a new private
international freight airport.
2
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
A
and
B
21
C
“infrastructure facility” – section 253, NTA
(f)
A
T
E
G
This term is defined in the NTA and includes any of the following –
(a)
a road, railway, bridge or other transport facility;
(b)
a jetty or port;
(c)
an airport or landing strip;
(d)
an electricity generation, transmission or distribution facility;
(e)
a storage, distribution or gathering or other transmission facility for:
(i) oil or gas; or
(ii) derivatives of oil or gas;
O
R
Y
(g) a storage or transportation facility for coal, any other mineral or any
mineral concentrate;
(h) a dam, pipeline, channel or other water management, distribution or
reticulation facility;
(i) a cable, antenna, tower or other communication facility;
(j) any other thing that is similar to any or all of the things mentioned in
2
paragraphs (a) to (h) and that the Commonwealth Minister determines
in writing to be an infrastructure facility for the purposes of this
paragraph.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
22
3. For a third party but NOT for an

The compulsory acquisition of native title rights and interests by
infrastructure facility defined in
the State under the State Development and Public Works
section 253, NTA.
Organisation Act 1971 for New Frontiers Incorporated for a
C
spaceport.
Category 3 – All other future acts on onshore areas
Your proposed future act falls within this category if it is onshore and did not fall within Categories 1 and 2.
C
A
Sub-category
Examples
T
Rights Type
E
G
O
Procedural
There are no

subcategories.
The dedication of an area below the high water mark as a jetty reserve under the Land Act
A
1994.
R

The making of legislation that dedicates a reservation over a particular onshore area.
Y

The grant of a development approval under the Sustainable Planning Act 2009.
3
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
23
Category 4 - Future acts done on offshore areas
Your proposed future act falls within this category if done on an offshore area.
C
A
Sub-category
Examples
T
Procedural
Rights Type
E
G
There are no subcategories
O

The grant of a mining lease under the Offshore Minerals Act 1998.
N.B. If your proposed future act is the compulsory acquisition of native title rights and interests,
R
D
contact ATSILS through your NTCO.
Y
4
Decision 5
Assessing the procedural rights type for your proposed future act
Now that you have decided in Decision 4 which category and subcategory applies, use the table at Decision Box 5 (page 6) to ascertain the
corresponding procedural rights type that applies to your proposed future act, ie. Type A, B, C or D. An explanation of each procedural rights type is
provided below. The explanation includes any additional requirements to be satisfied before you proceed to afford the relevant procedural rights.
“procedural rights”
What is captured by the term “procedural rights”? This explanation is particularly relevant to procedural rights types A and D.
“ Procedural rights" are defined in section 253 of the NTA to mean, in relation to an act(a)
a right to be notified of the act; or
(b)
a right to object to the act; or
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
24
(c)
any other right that is available as part of the procedures that are to be followed when it is proposed to do the act.
Procedural rights do not include all rights. For example, where the State legislation requires that you seek the consent of a freehold owner,
this is not a procedural right but a substantive right. You are not required to provide a substantive right under this Module.
Procedural rights are things that are done BEFORE the future act is done.
The procedural rights relevant to the doing of the future act will be contained in –
1.
The relevant State legislation – those procedural rights that must be provided under the relevant State legislation under which the future act is
done.
2.
Procedural fairness – does your department or agency extend procedural fairness (also referred to as natural justice) to affected persons when
doing this type of dealing? This question also raises the issue of whether procedural fairness should be provided (if it is not), but this is matter for
your department or agency.
Therefore the term “procedural rights” EQUALS procedural rights under the relevant State legislation PLUS procedural fairness.
What is procedural fairness?11
The term “procedural fairness”, or "natural justice", can be explained as a duty to observe fair procedures when making decisions which directly and
individually affect a person's rights, interests or legitimate expectations. There is a strong presumption that procedural fairness must be observed in the
exercise of public power.
11
The explanation in this information box are extracts (with some amendments to simplify language) from Laws of Australia accessed from Lawbook Online -
http://legalonline.thomson.com.au/tla/resultSummary.jsp?limit=20&tlaTitle=2.5
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
25
The rules of procedural fairness traditionally reduce to two: (a) the hearing rule and (b) the rule against bias.
The hearing rule entitles a person whose interests are liable to be affected to be given notice of relevant matters and a reasonable opportunity to present
his or her case. The rule against bias is concerned to ensure the objective appearance of impartiality and the absence of prejudgment.
Procedural fairness requires that, before a person's interests are affected, notice should be given of any relevant matters and an appropriate opportunity to
be heard provided. Adequate notice necessarily extends to giving persons sufficient time to prepare their case so that they can present it in the fullest
sense.
Procedural
Explanation
rights type
A
Further
requirements
Same procedural rights (onshore area) – section 24MD(6A) process
None
The native title holders and any registered native title claimants (the native title party) are entitled to the
same procedural rights that a freeholder receives if you instead did the proposed future act on freehold
land. Therefore, what procedural rights would you provide to a person holding freehold title for the
doing of this dealing?
For example, your proposed dealing is the construction of works. The legislation provides a power to do
works on land but that a notice of entry must first be provided to a freehold owner three days prior to
entering their land to do the works. Therefore, you must provide the same notice to the native title
parties.
For a compulsory acquisition of native title rights and interests, the native title parties are entitled to the
same procedural rights afforded to a freehold owner in the compulsory acquisition process under the
relevant legislation. Follow the procedural process in the relevant legislation.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
26
Procedural
Explanation
rights type
Further
requirements
Where NO procedural rights are given to a freehold owner, then NO procedural rights are given to the
native title party. Proceed with your proposed future act. Where there are procedural rights given to a
freehold owner, then you must give the same procedural rights (if any) to the native title parties in
accordance with the following flowcharts.
Where your proposed dealing is the compulsory acquisition of native title, the notification is
a Notice of Intention to Resume. Talk to the acquisition area to find out if they have an
appropriate template for the taking of native title rights and interests. If not, seek advice
from ATSILS through your NTCO.
Remember to use QNTIME to identify the native title parties (and their addresses) and what
areas of the proposed dealing area are covered by a registered native title claim, a
determination of native title, or which native title representative body/native title service
delivery agency area.
NB. Where there is a determination of native title but no registered native title body
corporate (check the details in the QNTIME entry), treat it like a registered native title claim.
Flowchart 1 shows you what to do if one of the procedural rights is a right to be notified. The
notification templates to be used are noted within the table.
Flowchart 2 shows you what to do if you need to also provide other types of procedural rights, ie. other
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
27
Procedural
Explanation
rights type
Further
requirements
than a right to be notified. Such other procedural rights could include a right to comment, a right to
make submissions, a right to be consulted, etc. You will need to amend the notification template
accordingly to reflect the other type of procedural rights. Where the only native title party is the native
title representative body/native title service delivery agency, instead of providing the “other procedural
rights”, an opportunity to comment is provided.
What is an opportunity to comment?
This procedural right gives the native title representative body an opportunity to provide
argument and information about native title interests to the decision-maker. The opportunity to
comment is to ensure that any possible impact of the proposed future act on native title rights and
interests is considered before any decision is made to proceed with the future act. It is not a right of
veto.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
28
FLOWCHART 1 – Right to be notified
START
HERE
Provide the
notification (A) to
the RNTBC and
the native title
representative
body / native title
service delivery
agency.
Are there any registered native title bodies corporate (RNTBC)
over the proposed dealing area? N.B. There will only be an
RNTBC if there is a determination of native title.
Yes
No
Are there any
registered native title
claimants over part of
the proposed dealing
area?
Yes
Provide the notification to:
- the RNTBC (A); and
- the registered native
title claimants (A); and
- the native title
representative body/
native title service
delivery agency (C).
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
No
No
Does the RNTBC/s
cover the whole of the
proposed dealing
area?
Are there any
registered native title
claimants over the
whole or part of the
proposed dealing
area?
No
Provide the notification
to the native title
representative body /
native title service
delivery agency (B).
Yes
Yes
Provide the notification
to the RNTBC (A).
Chapter 5: Future Acts
Provide the notification
to the registered native
title claimants (A) and
the native title
representative body /
native title service
delivery agency (C).
29
FLOWCHART 2 - Other procedural rights (ie. other than the right to be notified)
START
HERE
Yes
Provide the ‘other
procedural rights’
to the RNTBC.
Also provide an
opportunity to
comment to the
native title
representative
body / native title
service delivery
agency.
Are there any registered native title bodies corporate (RNTBC)
over the proposed dealing area? NB. There will only be an
RNTBC if there is a determination of native title.
No
Are there any
registered native title
claimants over part of
the proposed dealing
area?
Yes
Provide the ‘other
procedural rights’ to:
- the RNTBC; and
- the registered native
title claimants.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
No
No
Does the RNTBC/s
cover the whole of the
proposed dealing
area?
Are there any
registered native title
claimants over the
whole or part of the
proposed dealing
area?
No
Provide an opportunity
to comment to the
native title
representative body /
native title service
delivery agency.
Yes
Yes
Provide the ‘other
procedural rights’ to
the RNTBC
Chapter 5: Future Acts
Provide the ‘other
procedural rights’ to
the registered native
title claimants.
30
Procedural
Explanation
rights type
B
Further
requirements
Section 24MD(6B) process –
None
Step 1 – Notification – The notification is given to:

any native title representative bodies in the area;

all registered native title bodies corporate;

all registered native title claimants; and

the Native Title Registrar.
Step 2 - Objection period – The registered native title claimants and registered native title bodies
corporate may
object, within 2 months, to the doing of the future act in so far as it affects their native title rights and
interests.
Step 3 – Consultation – The State must consult with any registered native title claimants or registered
native title
bodies corporate, who object, about ways to minimise the impact on native title and access to the land
or waters concerned.
Step 4 - Hearing of any objection by an Independent Body
The objector can request the objection be heard by an Independent Body or person. The Independent
Body or person can make a determination. The determination can only be disregarded if (a) the State
Minister, who has responsibility for Indigenous Affairs, is consulted; (b) that consultation is taken into
account; and (c) it is in the interest of the State not to comply with the determination.
NB. The Independent Body is the Land Court in its Cultural Heritage Division (see section 32E of the
Land Court Act 2000).
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
31
Explanation
Procedural
requirements
rights type
C
Further
Right to negotiate process
None
The right to negotiate (RTN) is a valuable procedural right (for certain future acts) which registered native title
claimants and registered native title bodies corporate are entitled to receive and take part in. It is a good faith
negotiation between the parties (the State, the proponent and the native title parties) with a view to reaching an
agreement about the doing of a future act. If agreement cannot be reached within a certain timeframe, there is
an arbitrated outcome through a decision of the National Native Title Tribunal.
Refer to Module P for the procedural right process.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
32
Procedural
Explanation
rights type
D
Further
requirements
Same procedural rights (offshore area) – section 24NA process
None
The native title holders and any registered native title claimants (the native title parties) are entitled to
the same procedural rights a non-native title party with an interest in the offshore area would receive.
Therefore, what procedural rights would you need to provide a non-native title party with an interest in
the offshore area if you did the dealing in an offshore area?
For example, a government proposes to allow mining and restrict fishing in a particular offshore area. A
native title holder with native title fishing rights has the same rights (if any) as the holder of a fishing
licence under relevant legislation or administration, to be notified etc. of the proposed action.12
Where NO procedural rights are given to a non-native title party with an interest in the offshore area,
then NO procedural rights are given to the native title parties. Proceed with your proposed future act.
Where there are procedural rights given to a non-native title party with an offshore interest, then you
must give the same procedural rights (if any) to the native title parties in accordance with the following
flowcharts.
Where your proposed dealing is the compulsory acquisition of native title, the notification is
a Notice of Intention to Resume. Talk to the acquisition area to find out if they have an
appropriate template for the taking of native title rights and interests. If not, seek advice
from ATSILS through your NTCO.
12
Paragraph [16.7], Explanatory Memorandum to the Native Title Amendment Bill 1997
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
33
Remember to use QNTIME to identify the native title parties (and their addresses) and what
areas of the proposed dealing area are covered by a registered native title claim, a
determination of native title, or which native title representative body/native title service
delivery agency area.
NB. Where there is a determination of native title but no registered native title body
corporate (check the details in the QNTIME entry), treat it like a registered native title claim.
Flowchart 1 shows you what to do if one of the procedural rights is a right to be notified. The
notification templates to be used are noted within the table.
Flowchart 2 shows you what to do if you need to also provide other types of procedural rights, ie. other
than a right to be notified. Such other procedural rights could include a right to comment, a right to
make submissions, a right to be consulted, etc. You will need to amend the notification template
accordingly to reflect the other type of procedural rights. Where the only native title party is the native
title representative body/native title service delivery agency, instead of providing the “other procedural
rights”, an opportunity to comment is provided.
What is an opportunity to comment?
This procedural right gives the native title representative body an opportunity to provide
argument and information about native title interests to the decision-maker. The opportunity to comment
is to ensure that any possible impact of the proposed future act on native title rights and interests is
considered before any decision is made to proceed with the future act. It is not a right of veto.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
34
FLOWCHART 1 – Right to be notified
START
HERE
Provide the
notification (A) to
the RNTBC and
the native title
representative
body / native title
service delivery
agency.
Are there any registered native title bodies corporate (RNTBC)
over the proposed dealing area? NB. There will only be an
RNTBC if there is a determination of native title.
Yes
No
Are there any
registered native title
claimants over part of
the proposed dealing
area?
Yes
Provide the notification to:
- the RNTBC (A); and
- the registered native
title claimants (A); and
- the native title
representative body /
native title service
delivery agency (C).
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
No
No
Does the RNTBC/s
cover the whole of the
proposed dealing
area?
Are there any
registered native title
claimants over the
whole or part of the
proposed dealing
area?
No
Provide the notification
to the native title
representative body /
native title service
delivery agency (B).
Yes
Yes
Provide the notification
to the RNTBC (A).
Chapter 5: Future Acts
Provide the notification
to the registered native
title claimants (A) AND
the native title
representative body /
native title service
delivery agency (C).
35
FLOWCHART 2 - Other procedural rights (ie. other than the right to be notified)
START
HERE
Yes
Provide the ‘other
procedural rights’
to the RNTBC.
Also provide an
opportunity to
comment to the
native title
representative
body / native title
service delivery
agency.
Are there any registered native title bodies corporate (RNTBC)
over the proposed dealing area? NB. There will only be an
RNTBC if there is a determination of native title.
No
Are there any
registered native title
claimants over part of
the proposed dealing
area?
Yes
Provide the ‘other
procedural rights’ to:
- the RNTBC; and
- the registered native
title claimants.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
No
No
Does the RNTBC/s
cover the whole of the
proposed dealing
area?
Are there any
registered native title
claimants over the
whole or part of the
proposed dealing
area?
No
Provide an opportunity
to comment to the
native title
representative body /
native title service
delivery agency.
Yes
Yes
Provide the ‘other
procedural rights’ to
the RNTBC
Chapter 5: Future Acts
Provide the ‘other
procedural rights’ to
the registered native
title claimants.
36
B. Effect on native title, compensation and decision-making
Part 3
What is the effect on native title rights and interests by an act done under this Module?
If the future act is the acquisition of native title rights and interests, then it extinguishes those native title rights and interests.
Extinguishment
Extinguish means permanently extinguish. This means that after the extinguishment the native title rights and interests cannot revive, even if the act that
caused the extinguishment ceases to have effect. For example, if a public work was constructed over Lot A on Plan 6789 and later was removed, the
native title rights and interests cannot revive.
Example - The compulsory acquisition of native title rights and interests.
For all other future acts under this Module, the non-extinguishment principle applies.
Non-extinguishment principle
This means that native title rights and interests affected by the doing of the future act continue to exist and are not extinguished. However, while the future
act exists, those native title rights and interests are suppressed and cannot be exercised or enjoyed.
Example - The grant of a mining lease.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
37
Part 4
Is compensation payable for the doing of the future act?
Compensation for the effect of the future act on native title rights and interests is payable under this section if there is a successful claim for compensation
under the NTA.
If there is a law of the State that provides a person other than the Crown is liable to pay compensation, then that person must pay the compensation to the
native title parties. If there is no such law, then compensation is payable by the State where the act is attributable to the State.
In relation to the compulsory acquisition of native title rights and interests on non-exclusive agricultural leases or non-exclusive pastoral leases, the native
title holders cannot recover compensation from the lessee but must recover it from the State where the act is attributable to the State.
Part 5
Who makes the decision whether this module applies?
There are no actual delegations to make decisions in relation to native title under the Native Title Work Procedures, the NTA or the NTQA.
The native title assessment process is just one part of your decision-making process when making a decision under legislation, eg. a decision to grant a
mining lease, carry out a compulsory acquisition process. By carrying out a native title assessment, you are ensuring your decision complies with the NTA.
However, please ensure that, where requested in this Module, you provide all details about your proposed future act to Aboriginal and Torres
Strait Islander Land Services through your NTCO.
If you are unsure how to proceed, contact your NTCO for advice. If the NTCO is unsure how to proceed, Aboriginal and Torres Strait Islander Land
Services must be contacted for advice.
If this Module does not apply to the proposed future act,
please proceed to Module O.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module M&N V1
Chapter 5: Future Acts
38
Department of Natural Resources and Mines
Module O
Your proposed future act is not covered by the
preceding Modules – how can it be done validly?
Date: 8 October 2015
Queensland
Government
Module O
Section 24OA
Your proposed future act is not covered by the preceding
Modules – how can it be done validly?
DOES THE PROPOSED FUTURE ACT FIT WITHIN THIS MODULE? If you have reached this Module, it means that your proposed dealing may be
invalid to the extent it affects native title UNLESS –

an Indigenous Land Use Agreement is negotiated and registered under
which the native title parties consent to the doing of the proposed future
act (see Module Q);
OR

a non-claimant application is filed in the Federal Court in relation to the
proposed dealing area and section 24FA protection (see Module F) is
invoked or a determination is made by the Federal Court that native
title does not exist (see Module R).
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module O V2
Chapter 5: Future Acts
2
Introduction
If you have reached this Module, it means that you are of the view that your proposed dealing:

could be a future act, ie. an act that affects native title;
and

is not covered by any of the preceding Modules.
This means that if you proceed with your proposed dealing without further considering native title your proposed dealing could be invalid to the extent it affects native title. The following parts consider –

options to ensure that your dealing is valid in relation to native title (Part 1);

what is invalidity in relation to native title (Part 2); and

addressing invalidity in relation to native title (Part 3).
Part 1
Options to ensure the proposed dealing is valid in relation to
native title
If you have reached this Module, two options remain that may be applicable to ensure that your
proposed dealing is valid in relation to native title –

the negotiation and registration of an ILUA under which the native title parties consent to
the doing of the proposed future act.
Please refer to Module Q.
OR

the filing of a non-claimant application in the Federal Court in relation to the proposed
dealing area for which section 24FA protection is gained or a determination is made by
the Federal Court that native title does not exist.
Please refer to Module R and Module F.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module O V2
Chapter 5: Future Acts
3
Part 2
What is invalidity in relation to native title?
Before a dealing can be assessed as being valid or invalid in relation to native title, the dealing
must firstly be a future act, ie. an act that affects native title.
For a dealing to affect native title, it must be otherwise wholly or partly inconsistent with its
continued existence, enjoyment or exercise or be an act that extinguishes native title rights and
interests.1
However, it is not until there is a determination of native title by the Federal Court that the State
can be sure that its land and resource dealings are in fact future acts. Unless native title has
been wholly extinguished over a particular area, the State as a general rule will assume that a
dealing is a future act.
For a dealing to affect native title it must be 
valid in itself, eg. there is power under State legislation to do the dealing;
and

valid in relation to native title2.
A dealing is valid in relation to native title 3 where it is –

covered by one of the future act provisions, ie. sections 24FA, 24GB, 24GD, 24GE,
24HA, 24IA, 24JAA, 24JA, 24KA, 24LA, 24MD or 24NA. In addition, certain acts
covered by sections 24IC and 24MD must also satisfy the requirements of Subdivision P
(the right to negotiate) to be valid;
or

covered by a registered ILUA under which the native title parties consent to the dealing.
Therefore, a dealing is invalid in relation to native title where it is not covered by one of the future
4
act provisions or a registered ILUA.
1
Sections 24AA(1) and section 227, NTA
Section 233, NTA
3
Section 24AA(2)-(5), NTA
4
Section 24AA(2), NTA.
2
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module O V2
Chapter 5: Future Acts
4
A dealing that is invalid in relation to native title does not suppress or extinguish native
title over the dealing area and the native title holders’ enjoyment and exercise of their
native title rights and interests are not in any way impacted by the dealing.
Example
The State carries out a native title assessment for the proposed dealing area and concludes that
native title has been wholly extinguished. Based upon that assessment, a freehold title is
granted over the proposed dealing area. However, the assessment was incorrect. The grant of
the freehold title is invalid in relation to native title as none of the future act provisions applied
and the dealing was not covered by a registered ILUA.
As the freehold grant is invalid in relation to native title, the native title holders are otherwise able
to exercise their native title rights and interests over the proposed dealing area.
Part 3
Can invalidity in relation to native title be addressed if you
have already done the dealing?
If you think you already have a dealing that could be invalid in relation to native title, provide all
details to Aboriginal and Torres Strait Islander Land Services through your NTCO.
Department of Natural Resources and Mines, 2015
Native Title Work Procedures – Module O V2
Chapter 5: Future Acts
5