Aboriginal Land Act 1991


Queensland Crest
Aboriginal Land Act 1991
Queensland Aboriginal Land Act 1991 Current as at 7 November 2013
Information about this reprint This reprint shows the legislation current as at the date on the cover and is authorised by the Parliamentary Counsel. A new reprint of the legislation will be prepared by the Office of the Queensland Parliamentary Counsel when any change to the legislation takes effect. This change may be because a provision of the original legislation, or an amendment to it, commences or because a particular provision of the legislation expires or is repealed. When a new reprint is prepared, this reprint will become a historical reprint. Also, if it is necessary to replace this reprint before a new reprint is prepared, for example, to include amendments with a retrospective commencement, an appropriate note would be included on the cover of the replacement reprint and on the copy of this reprint at www.legislation.qld.gov.au. The endnotes to this reprint contain detailed information about the legislation and reprint. For example— The table of reprints endnote lists any previous reprints and, for this reprint, gives details of any discretionary editorial powers under the Reprints Act 1992 used by the Office of the Queensland Parliamentary Counsel in preparing it. The list of legislation endnote gives historical information about the original legislation and the legislation which amended it. It also gives details of uncommenced amendments to this legislation. For information about possible amendments to the legislation by Bills introduced in Parliament, see the Queensland Legislation Current Annotations at www.legislation.qld.gov.au/Leg_Info/ information.htm. The list of annotations endnote gives historical information at section level. All Queensland reprints are dated and authorised by the Parliamentary Counsel. The previous numbering system and distinctions between printed and electronic reprints are not continued.
Queensland Aboriginal Land Act 1991 Contents Part 1 1 2 3 4 Part 2 Division 1 5 6 7 Division 2 8 Division 3 9 10 11 12 13 14 Division 4 15 16 17 18 19 20 21 Page Preliminary Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Aborigines particularly concerned with land etc. . . . . . . . . . . . . . 16 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Basic concepts Aboriginal people and their traditions Meaning of Aboriginal people. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Meaning of Aborigine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Meaning of Aboriginal tradition. . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Aboriginal land Meaning of Aboriginal land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Transferable and transferred land Meaning of transferable and transferred land. . . . . . . . . . . . . . . . 18 Lands that are transferable lands . . . . . . . . . . . . . . . . . . . . . . . . . 18 DOGIT land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Aboriginal reserve land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Aurukun Shire lease land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Mornington Shire lease land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Declarations about particular transferable land Definition for div 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Particular land may be declared to be not transferable land . . . . 24 Notice of intention to make declaration . . . . . . . . . . . . . . . . . . . . 25 Minister to consider representations and give notice of decision . 25 Notice about declarations—trustee . . . . . . . . . . . . . . . . . . . . . . . 26 Notice about declarations—registrar . . . . . . . . . . . . . . . . . . . . . . 26 Requirements about plans of subdivision for declarations . . . . . . 27
Aboriginal Land Act 1991 Contents Division 5 22 23 Division 6 24 25 26 27 28 29 30 31 Division 7 32 Part 3 33 34 35 36 37 Part 4 Division 1 38 39 40 41 42 43 44 45 45A 46 47 Claimable and granted land Meaning of claimable and granted land . . . . . . . . . . . . . . . . . . . . Land that is claimable land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Available State land Land that is available State land—general . . . . . . . . . . . . . . . . . . Agreement about particular land . . . . . . . . . . . . . . . . . . . . . . . . . Watercourses and lakes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tidal land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of city or town land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of township land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . National parks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Land that is not available State land. . . . . . . . . . . . . . . . . . . . . . . Application of laws to Aboriginal land Application of laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Formal expression of interest about land Purpose of pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Land to which pt 3 applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Expression of interest in having land made transferable land . . . Chief executive to consider expression of interest . . . . . . . . . . . . Consideration of expression of interest does not impose obligation on State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Grant of transferable land as Aboriginal land Grant of land Deeds of grant to be prepared . . . . . . . . . . . . . . . . . . . . . . . . . . . Appointment of registered native title body corporate as grantee to hold land for native title holders . . . . . . . . . . . . . . . . . . . . . . . . Appointment of grantee to hold land for benefit of Aboriginal people ......................................... Procedure for appointing particular grantee . . . . . . . . . . . . . . . . . Minister to act as soon as possible. . . . . . . . . . . . . . . . . . . . . . . . Authority to grant fee simple in transferable land . . . . . . . . . . . . . Deed of grant takes effect on delivery . . . . . . . . . . . . . . . . . . . . . Existing interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Existing interests held by local government . . . . . . . . . . . . . . . . . Interests to be endorsed on deed. . . . . . . . . . . . . . . . . . . . . . . . . Cancellation of deed of grant in trust . . . . . . . . . . . . . . . . . . . . . . 28 28 29 29 30 30 30 31 31 31 31 32 32 32 33 33 33 34 35 37 38 39 39 40 41 41 42 Page 2
48 49 Division 2 50 51 52 53 Division 3 54 55 Part 5 Division 1 56 57 58 59 60 Division 2 61 62 63 64 65 66 67 68 69 70 71 72 73 Part 6 Division 1 74 75 Aboriginal Land Act 1991 Contents Cancellation of leases over Aurukun and Mornington Shire lease lands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Land Court may resolve difficulties . . . . . . . . . . . . . . . . . . . . . . . Approvals to change how land is held Application to hold Aboriginal land for native title holders . . . . . . Decision on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notices about decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of gazette notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reservations Resource reservations under resource Acts . . . . . . . . . . . . . . . . Reservations of forest products and quarry material etc.. . . . . . . Claims for claimable land Requirements for claims Duly made claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Who may make a claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Grounds on which claim may be made . . . . . . . . . . . . . . . . . . . . How claim is to be made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time limit for making of claims . . . . . . . . . . . . . . . . . . . . . . . . . . . Determination of claims Deciding whether claim duly made. . . . . . . . . . . . . . . . . . . . . . . . Tribunal to notify making of claims . . . . . . . . . . . . . . . . . . . . . . . . Joint hearing of claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Repeat claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Establishment of claim on ground of traditional affiliation. . . . . . . Establishment of claim on ground of historical association . . . . . Claim may be established for only part of land claimed . . . . . . . . Claim may be established on more than 1 ground . . . . . . . . . . . . Time at which it is to be decided whether land is claimable land . Amendment of claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recommendation to Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . Resolution of conflicting claims . . . . . . . . . . . . . . . . . . . . . . . . . . Notification of parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Grant of claimable land as Aboriginal land Grant of land Deeds of grant to be prepared . . . . . . . . . . . . . . . . . . . . . . . . . . . Appointment of grantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 43 43 44 44 45 45 46 47 47 47 47 48 48 49 50 51 51 52 52 52 52 53 53 54 54 55 56 Page 3
Aboriginal Land Act 1991 Contents 76 77 78 79 80 Division 2 81 82 Division 3 83 Part 7 84 85 86 Part 8 Division 1 87 88 Division 2 89 90 91 92 93 94 95 Division 3 96 Part 9 Division 1 97 98 99 Authority to grant fee simple in claimable land . . . . . . . . . . . . . . . Deed of grant takes effect on delivery . . . . . . . . . . . . . . . . . . . . . Existing interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cancellation of existing deed of grant . . . . . . . . . . . . . . . . . . . . . Land Court may resolve difficulties . . . . . . . . . . . . . . . . . . . . . . . Reservations Resource reservations under other Acts . . . . . . . . . . . . . . . . . . . Reservations of forest products and quarry material etc.. . . . . . . Access to coastal land Rights of access preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Register of entities holding Aboriginal land Keeping register of entities holding Aboriginal land . . . . . . . . . . . Giving information for register to the chief executive . . . . . . . . . . Obtaining information in register . . . . . . . . . . . . . . . . . . . . . . . . . Transfer of Aboriginal land by Minister Preliminary Purpose of pt 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of pt 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Vesting and transfer of land Vesting of land in the State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . How land is held by the State . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minister to transfer land as soon as practicable . . . . . . . . . . . . . . Transfer to registered native title body corporate to hold for native title holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transfer to entity to hold for benefit of Aboriginal people . . . . . . . Procedure for transferring land. . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of gazette notice about transfer . . . . . . . . . . . . . . . . . . . . . Notices to registrar Notice about land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General provisions for dealing with Aboriginal land Trustee’s power to deal with Aboriginal land and Ministerial consent Power to deal with Aboriginal land . . . . . . . . . . . . . . . . . . . . . . . . Requirement for consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provision about Minister’s consent . . . . . . . . . . . . . . . . . . . . . . . . 57 57 57 58 59 59 59 60 61 62 63 64 64 64 65 65 65 66 67 68 68 69 70 71 Page 4
Aboriginal Land Act 1991 Contents Division 2 100 Division 3 101 102 Division 4 Subdivision 1 103 104 105 106 107 Subdivision 2 108 109 110 111 112 Subdivision 3 113 Division 5 114 Division 6 115 116 117 118 Part 10 Division 1 119 Division 2 Subdivision 1 120 121 122 Sale or mortgage prohibited Prohibition on sale or mortgage of Aboriginal land . . . . . . . . . . . Grant of licences Grant of licence for Aboriginal land . . . . . . . . . . . . . . . . . . . . . . . Conditions of licences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transfer of Aboriginal land by trustee Land held other than by CATSI corporation Application of sdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transfer of Aboriginal land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application for approval to transfer . . . . . . . . . . . . . . . . . . . . . . . . Minister’s approval to transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of gazette notice about transfer . . . . . . . . . . . . . . . . . . . . . Land held by CATSI corporation Application of sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transfer of Aboriginal land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application for approval to transfer . . . . . . . . . . . . . . . . . . . . . . . . Minister’s approval to transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of gazette notice about transfer . . . . . . . . . . . . . . . . . . . . . Exemption from fees and charges Exemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Land in Cape York Peninsula Region Dealing with Aboriginal land in Cape York Peninsula Region. . . . Other matters Trustee to advise chief executive of change to description of land Particular dealings in Aboriginal land void . . . . . . . . . . . . . . . . . . Provision about resumption of Aboriginal land etc. . . . . . . . . . . . Devolution of granted land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Leasing of Aboriginal Land Grant of leases for Aboriginal land Grant of lease for Aboriginal land . . . . . . . . . . . . . . . . . . . . . . . . . Standard leases Restrictions on grant of standard leases Restrictions on grant of standard lease to an Aborigine. . . . . . . . Restrictions on grant of standard lease to State . . . . . . . . . . . . . Restrictions on grant of standard lease to another person. . . . . . 72 72 73 73 74 75 76 77 77 78 78 79 79 79 80 80 81 81 81 82 83 84 85 Page 5
Aboriginal Land Act 1991 Contents Subdivision 2 123 124 125 Division 3 Subdivision 1 126 Subdivision 2 127 Subdivision 3 128 129 130 131 Subdivision 4 132 Division 4 Subdivision 1 133 Subdivision 2 134 135 136 Subdivision 3 137 138 139 Division 5 Subdivision 1 140 Requirements for Minister’s consent General requirements for Minister’s consent . . . . . . . . . . . . . . . . Requirement for Minister’s consent for standard lease for commercial purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Requirement for Minister’s consent for creation of interest under a standard lease. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Townsite leases Restriction on grant of townsite leases Minister’s consent for grant of townsite lease. . . . . . . . . . . . . . . . Requirements for Minister’s consent General requirements for Minister’s consent . . . . . . . . . . . . . . . . Provisions about dealing with townsite leases Transfer or amendment of townsite lease. . . . . . . . . . . . . . . . . . . Townsite lease and transfer, amendment or surrender of lease to be registered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Surrender of townsite lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . No forfeiture of townsite lease . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of townsite lease on existing interests Lessee of townsite lease taken to be lessor of existing leases . . Townsite subleases Grant of subleases under townsite lease Grant of sublease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Requirements about grants of subleases under townsite leases Restrictions on grant of townsite sublease to an Aborigine . . . . . Restrictions on grant of townsite sublease to State . . . . . . . . . . . Restrictions on grant of townsite sublease to another person . . . Requirements for Minister’s consent General requirements for Minister’s consent . . . . . . . . . . . . . . . . Requirement for Minister’s consent for townsite sublease for commercial purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Requirement for Minister’s consent for creation of interest under a townsite sublease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Common provisions for standard leases and townsite subleases Preliminary Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 87 88 88 89 90 91 91 91 91 92 93 94 95 95 96 97 98 Page 6
Aboriginal Land Act 1991 Contents Subdivision 2 141 142 143 144 Subdivision 3 145 146 Division 6 Subdivision 1 147 148 Subdivision 2 149 150 151 152 153 Subdivision 3 154 155 156 157 158 159 160 Subdivision 4 161 162 163 164 165 Conditions of leases Conditions of leases—general . . . . . . . . . . . . . . . . . . . . . . . . . . . Leases for private residential purposes—general conditions and requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Leases for private residential purposes—particular requirements if dwelling situated on land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Option to renew particular lease or sublease . . . . . . . . . . . . . . . . Provisions about transfer, amendment or surrender of leases Transfer or amendment of lease or sublease . . . . . . . . . . . . . . . . Lease, sublease and particular dealings to be registered . . . . . . Forfeiture and renewal of residential leases Preliminary Definitions for div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forfeiture Grounds for forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Referral to Land Court for forfeiture . . . . . . . . . . . . . . . . . . . . . . . Lessor’s options if Land Court decides residential lease may be forfeited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice and effect of forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . Extension of term of lease—referral for forfeiture. . . . . . . . . . . . . Renewal Notice of expiry of lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application to renew lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lessor to consider and decide application . . . . . . . . . . . . . . . . . . Decision to renew lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lessor may decide not to renew lease . . . . . . . . . . . . . . . . . . . . . Notice to lessee about decision not to renew lease . . . . . . . . . . . Extension of term of lease—application for renewal . . . . . . . . . . General matters about forfeiture or non-renewal of residential leases Right to remove improvements if residential lease forfeited or not renewed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Payment by lessor for forfeited or non-renewed residential lease Unclaimed amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amounts owing to lessor or mortgagee to be deducted . . . . . . . . Payment of amount to mortgagee in discharge of mortgage . . . . 98 99 100 102 102 104 104 105 105 105 106 106 107 107 108 108 108 109 109 109 110 110 111 111 112 Page 7
Aboriginal Land Act 1991 Contents Division 7 166 167 168 Part 11 Division 1 169 170 171 172 Division 2 173 174 Division 3 175 Part 12 176 177 Part 13 178 179 Part 14 Division 1 180 181 Division 2 182 183 Part 15 Division 1 184 185 Miscellaneous Effect of option to renew or extend on calculation of term of leases ........................................ Exemption from fees and charges . . . . . . . . . . . . . . . . . . . . . . . . Leases for private residential purposes—beneficiary. . . . . . . . . . Indigenous management agreements and land in Cape York Peninsula Region and North Stradbroke Island Region Indigenous management agreements Entering into indigenous management agreement. . . . . . . . . . . . Requirements for indigenous management agreement . . . . . . . . Amending indigenous management agreement. . . . . . . . . . . . . . Recording of indigenous management agreement . . . . . . . . . . . National parks in Cape York Peninsula Region Requirements about grant of national parks in Cape York Peninsula Region . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Particular national parks taken to be transferable land. . . . . . . . . Protected areas in North Stradbroke Island Region Requirement about grant of prescribed protected areas in North Stradbroke Island Region . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provisions about particular claimable land Particular claimable land taken to be transferable land . . . . . . . . Claimable land recommended for grant taken to be transferable land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Decision-making process When agreement of Aboriginal people is given . . . . . . . . . . . . . . Decision-making by trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provisions about mortgages of leases over Aboriginal land Preliminary Definitions for pt 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of pt 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mortgages of leases over Aboriginal land Provision about entering into possession of, and selling, lease . . How lessor deals with proceeds of sale . . . . . . . . . . . . . . . . . . . . Leasing of Aboriginal trust land Preliminary Definitions for pt 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Relationship with Land Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 113 113 114 115 116 116 117 118 118 119 120 121 121 122 122 123 124 124 125 Page 8
Division 2 186 187 188 189 Division 3 190 191 Part 16 Division 1 192 193 194 195 196 Division 2 197 198 Part 17 199 200 201 Part 18 202 203 Part 19 Division 1 204 205 206 207 208 209 210 Aboriginal Land Act 1991 Contents Leases Trustee (Aboriginal) leases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amending trustee (Aboriginal) lease . . . . . . . . . . . . . . . . . . . . . . Mortgage of trustee (Aboriginal) lease . . . . . . . . . . . . . . . . . . . . . Surrender of trustee (Aboriginal) lease . . . . . . . . . . . . . . . . . . . . Other matters Trustee to advise about ending of particular lease for commercial purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recording information about land . . . . . . . . . . . . . . . . . . . . . . . . Special provisions about prescribed DOGIT land and prescribed reserve land Prescribed DOGIT land Application of div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prescribed DOGIT land may be granted under this Act . . . . . . . . Minister to consult before grant of land . . . . . . . . . . . . . . . . . . . . Application of general provisions . . . . . . . . . . . . . . . . . . . . . . . . . Application of provisions for grant of land. . . . . . . . . . . . . . . . . . . Prescribed reserve land Meaning of prescribed reserve land . . . . . . . . . . . . . . . . . . . . . . . Application of particular provisions. . . . . . . . . . . . . . . . . . . . . . . . Occupation and use of Aboriginal land by the State or Commonwealth Use of Aboriginal land preserved . . . . . . . . . . . . . . . . . . . . . . . . . No rent payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Access to land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mining Application of Mineral Resources Act 1989 . . . . . . . . . . . . . . . . . Royalties in relation to mining on Aboriginal land. . . . . . . . . . . . . The Land Tribunal Establishment and membership Land Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appointment of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Qualifications for appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . Term of appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Terms and conditions of appointment. . . . . . . . . . . . . . . . . . . . . . Preservation of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 127 127 128 128 128 129 129 130 130 130 132 133 133 134 134 136 138 138 138 139 139 139 140 140 Page 9
Aboriginal Land Act 1991 Contents 211 212 213 214 Division 2 215 216 217 218 219 Division 3 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 Division 4 242 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Acting chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Organisation of tribunal Arrangement of business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitution of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Member presiding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Member of tribunal ceasing to be available . . . . . . . . . . . . . . . . . Sitting places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conduct of proceedings before tribunal Parties to proceeding before tribunal . . . . . . . . . . . . . . . . . . . . . . Tribunal to determine who are interested persons . . . . . . . . . . . . Representation before tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hearings to be in public except in special circumstances . . . . . . Opportunity to make submissions . . . . . . . . . . . . . . . . . . . . . . . . Particular powers of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Manner in which questions to be decided . . . . . . . . . . . . . . . . . . Power of tribunal to dismiss claim or strike out party . . . . . . . . . . Tribunal may order that particular claimable land is transferable land ................................. General powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reasons to be given by tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . Appeals to Land Appeal Court from decisions of tribunal . . . . . . Reference of questions of law to Land Appeal Court . . . . . . . . . . Evidence and other findings in other proceedings . . . . . . . . . . . . Protection of members etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Continuing authority of member . . . . . . . . . . . . . . . . . . . . . . . . . . Failure of witness to attend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Refusal of witness to be sworn or to answer questions . . . . . . . . Obstructing tribunal etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Allowances for witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Miscellaneous Management of administrative affairs of tribunal . . . . . . . . . . . . . 140 141 141 142 142 143 144 144 145 145 145 146 146 147 148 149 149 150 151 151 152 152 152 154 154 155 155 156 156 156 157 157 Page 10
Aboriginal Land Act 1991 Contents 243 244 245 246 Part 20 Division 1 247 248 249 Division 2 Subdivision 1 250 250A Subdivision 2 251 Subdivision 3 252 253 254 255 255A 256 Subdivision 4 257 257A 257B 257C 257D 257E 257F Subdivision 5 257G Staff of tribunal employed under Public Service Act 2008 . . . . . . Consultants to tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Delegation of powers by chairperson . . . . . . . . . . . . . . . . . . . . . . Provisions about land trusts Preliminary Composition of land trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nature of land trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Function and powers of land trust . . . . . . . . . . . . . . . . . . . . . . . . Appointment, removal and suspension of members of land trusts Appointment of members Minister may appoint member . . . . . . . . . . . . . . . . . . . . . . . . . . . Land trust may appoint member. . . . . . . . . . . . . . . . . . . . . . . . . . Grounds for removal or suspension of members Grounds for removal or suspension of member . . . . . . . . . . . . . . Removal or suspension of members by Minister Show cause notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Representations about show cause notice. . . . . . . . . . . . . . . . . . Ending show cause process without further action . . . . . . . . . . . Removing or suspending member . . . . . . . . . . . . . . . . . . . . . . . . Effect of removing member on other land trust membership . Immediate suspension of member . . . . . . . . . . . . . . . . . . . . . . . . Removal or suspension of members by land trust Proposed removal or suspension approved by resolution and show cause notice . . . . . . . . . . . . . . . . . . . . . . . . Representations about show cause notice. . . . . . . . . . . . . . . . . . Land trust decisions about removal or suspension of member . . Decisions about removal or suspension of member referred to land trust general meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Action after decision about removal or suspension of member . . Immediate suspension of member . . . . . . . . . . . . . . . . . . . . . . . . Limitation on land trust’s power about suspension of member Information about appointment, removal or resignation of members Information about appointment, removal or resignation of members .................................... 157 157 157 158 158 158 159 160 161 162 163 163 164 164 165 165 166 167 167 169 169 170 171 172 Page 11
Aboriginal Land Act 1991 Contents Division 3 258 Division 4 259 260 Division 5 261 262 263 264 Division 6 265 265A 266 Part 21 Division 1 267 268 Division 2 269 270 271 272 273 274 275 276 Part 22 277 278 279 280 281 Recording information about compliance with Act Particular information to be recorded in register . . . . . . . . . . . . . Land trusts to give information to chief executive Definition for div 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Power to require particular information. . . . . . . . . . . . . . . . . . . . . Freezing accounts of land trusts Definitions for div 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Freezing land trust’s accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . Financial institution must comply with direction . . . . . . . . . . . . . . Withdrawal of direction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Miscellaneous Chief executive may prepare model rules . . . . . . . . . . . . . . . . . . Resolution of executive committee without meeting. . . . . . . . . . . Provision about vesting of Aboriginal land . . . . . . . . . . . . . . . . . . Application of Trusts Act 1973 Preliminary Application of Trusts Act 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . Functions and powers of land trust under Trusts Act 1973 . . . . . Powers of Supreme Court Jurisdiction of Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . Power of court to relieve member of land trust from personal liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court may order beneficiary to indemnify for certain breaches . . Right of land trust or member to apply to court for directions. . . . Court’s jurisdiction to make orders conferring power on land trust or members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protection of land trust or member while acting under direction of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Power of Supreme Court to make orders in absence of member Power of Supreme Court to charge costs on trust property . . . . . Appeals Who may appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Starting appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nature of appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Powers of Land Court on appeal . . . . . . . . . . . . . . . . . . . . . . . . . 172 172 173 173 174 174 175 175 175 176 176 176 177 177 178 178 178 180 180 181 181 182 182 182 183 Page 12
Aboriginal Land Act 1991 Contents Part 23 282 283 284 285 286 287 288 289 290 291 292 293 294 Part 24 295 296 297 Part 25 Division 2 Subdivision 1 299 Subdivision 2 300 301 Division 3 302 303 304 305 Division 4 306 Miscellaneous Creation of interests in transferable and claimable land. . . . . . . . Rights of access to interests preserved . . . . . . . . . . . . . . . . . . . . National park subject to lease to State etc. . . . . . . . . . . . . . . . . . Persons and bodies representing State or Commonwealth . . . . . Delegation by Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of description of land . . . . . . . . . . . . . . . . . . . . . . . . Dealing with particular trust property . . . . . . . . . . . . . . . . . . . . . . Application of Residential Tenancies and Rooming Accommodation Act 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Survey costs etc. to be paid by State . . . . . . . . . . . . . . . . . . . . . . Application of Financial Accountability Act 2009 . . . . . . . . . . . . . Confirmation of status of particular land. . . . . . . . . . . . . . . . . . . . Approval of forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Validation provisions Existing conservation agreements . . . . . . . . . . . . . . . . . . . . . . . . Existing interest in transferable land. . . . . . . . . . . . . . . . . . . . . . . Retrospective validation of dealings with trustee (Aboriginal) lease .......................................... Transitional provisions Transitional provisions for Aboriginal and Torres Strait Islander Land Amendment Act 2008 Preliminary Definition for div 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transitional provisions Transferred land—change to beneficiaries . . . . . . . . . . . . . . . . . . Interests in Aboriginal land continue . . . . . . . . . . . . . . . . . . . . . . Transitional provisions for Aboriginal Land and Torres Strait Islander Land and Other Legislation Amendment Act 2011 Definition for div 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Continued operation of provisions for appointing grantees . . . . . Continued operation of provisions about land trusts . . . . . . . . . . References to previous provisions after renumbering . . . . . . . . . Transitional provision for Land, Water and Other Legislation Amendment Act 2013 Continuation of Mornington Shire subleases . . . . . . . . . . . . . . . . 183 185 186 188 188 188 189 190 190 190 190 191 191 192 192 193 194 194 194 195 195 196 196 197 Page 13
Aboriginal Land Act 1991 Contents Schedule 1 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198 Endnotes 1 2 3 4 5 6 7 8 9 Index to endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Date to which amendments incorporated. . . . . . . . . . . . . . . . . . . . . . Key . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of reprints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . List of legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . List of annotations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forms notified or published in the gazette . . . . . . . . . . . . . . . . . . . . . Tables of renumbered provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information about retrospectivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 209 210 210 212 216 243 244 254 Page 14
Aboriginal Land Act 1991 Aboriginal Land Act 1991 [as amended by all amendments that commenced on or before 7 November 2013] An Act providing for the grant, and the claim and grant, of land as Aboriginal land, and for other purposes Whereas— 1 Before European settlement land in what is now the State of Queensland had been occupied, used and enjoyed since time immemorial by Aboriginal people in accordance with Aboriginal tradition. 2 Land is of spiritual, social, historical, cultural and economic importance to Aboriginal people. 3 After European settlement many Aboriginal people were dispossessed and dispersed. 4 Some Aboriginal people have maintained their ancestors’ traditional affiliation with particular areas of land. 5 Some Aboriginal people have a historical association with particular areas of land based on them or their ancestors having lived on or used the land or neighbouring land. 6 Some Aboriginal people have a requirement for land to ensure their economic or cultural viability. 7 Some land has been set aside for Aboriginal reserves or for the benefit of Aboriginal people and deeds of grant in trust are held on behalf of certain Aboriginal people. 8 The Parliament is satisfied that Aboriginal interests and responsibilities in relation to land have not been adequately and appropriately recognised by the law and that this has contributed to a general failure of previous policies in relation to Aboriginal people. Current as at 7 November 2013 Page 15
Aboriginal Land Act 1991 Part 1 Preliminary [s 1] 9 The Parliament is further satisfied that special measures need to be enacted for the purpose of securing adequate advancement of the interests and responsibilities of Aboriginal people in Queensland and to rectify the consequences of past injustices. 10 It is, therefore, the intention of the Parliament to make provision, by the special measures enacted by this Act, for the adequate and appropriate recognition of the interests and responsibilities of Aboriginal people in relation to land and thereby to foster the capacity for self-development, and the self-reliance and cultural integrity, of the Aboriginal people of Queensland. Part 1 Preliminary 1 Short title This Act may be cited as the Aboriginal Land Act 1991 . 2 Definitions The dictionary in schedule 1 defines particular words used in this Act. 3 Aborigines particularly concerned with land etc. (1) For the purposes of this Act, an Aborigine is particularly concerned with land if the Aborigine— (a) has a particular connection with the land under Aboriginal tradition; or (b) lives on or uses the land or neighbouring land. (2) For the purposes of this Act, Aboriginal people are particularly concerned with land if— Page 16 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 2 Basic concepts [s 4] (a) they are members of a group that has a particular connection with the land under Aboriginal tradition; or (b) they live on or use the land or neighbouring land. 4 Act binds all persons This Act binds all persons, including the State, and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States. Part 2 Basic concepts Division 1 Aboriginal people and their traditions 5 Meaning of Aboriginal people Aboriginal people are people of the Aboriginal race of Australia. 6 Meaning of Aborigine An Aborigine is a person of the Aboriginal race of Australia. 7 Meaning of Aboriginal tradition Aboriginal tradition is the body of traditions, observances, customs and beliefs of Aboriginal people generally or of a particular group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships. Current as at 7 November 2013 Page 17
Aboriginal Land Act 1991 Part 2 Basic concepts [s 8] Division 2 Aboriginal land 8 Meaning of Aboriginal land (1) Aboriginal land is transferred land or granted land. (2) Aboriginal land includes land that was transferred land and has subsequently become granted land. Division 3 Transferable and transferred land 9 Meaning of transferable and transferred land (1) Transferable land is land that is to be granted under part 4 without a claim being made under this Act for the land. (2) Transferred land is land that is granted under part 4 without a claim being made under this Act for the land. 10 Lands that are transferable lands (1) The following lands are transferable lands— (a) DOGIT land; (b) Aboriginal reserve land; (c) Aurukun Shire lease land; (d) Mornington Shire lease land; (e) available State land declared by regulation to be transferable land; (f) land that is transferable land under section 174, 176 or 177; (g) land that becomes transferable land under section 230; (h) land in the following lots— (i) Lot 1 on SP228365; (ii) Lot 5 on SP228365; Page 18 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 2 Basic concepts [s 11] (iii) Lot 129 on SP228365; (iv) Lot 130 on SP228365; (v) Lot 113 on SP228365; (vi) Lot 119 on SP228365; (vii) Lot 1 on SP228366; (viii) Lot 2 on SP228367; (ix) Lot 1951 on SP228368; (x) Lot 90 on CP816530; (xi) Lot 147 on SL7542; (xii) Lot 300 on SP104019. (2) However, land mentioned in subsection (1)— (a) ceases to be transferable land if it is taken, under the Acquisition Act, by a constructing authority; and (b) if the land is Aboriginal trust land—is not transferable land if it is subject to a lease for more than 30 years granted under this Act for a commercial purpose; and (c) is not transferable land if it is the subject of a declaration in force under section 16. 11 DOGIT land (1) DOGIT land is land that, at the beginning of the enactment day, was— (a) prescribed DOGIT land or land granted in trust under the Land Act 1962 for the benefit of Aboriginal inhabitants or for the purpose of an Aboriginal reserve; or (b) within the external boundaries of an area of such land and— (i) reserved and set apart for, or dedicated to, a public purpose under the Land Act 1962 ; or Current as at 7 November 2013 Page 19
Aboriginal Land Act 1991 Part 2 Basic concepts [s 12] (ii) land that has become unallocated State land by way of resumption for a public purpose within the meaning of the Land Act 1962 ; or (iii) subject to a lease granted under the Land Holding Act; or (iv) subject to a special lease granted under the Land Act 1962 ; or (v) the subject of an application under the Land Holding Act, section 5, that had been approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act, but for which a lease under that Act has not been granted; other than— (vi) a road; or (vii) a stock route or associated reserve. (2) DOGIT land includes land within the external boundaries of land mentioned in subsection (1)(a) that has, since the enactment day, ceased to be a road. (3) Also, DOGIT land includes land within the external boundaries of land mentioned in subsection (1)(a) if— (a) the land was the subject of an application under the Land Holding Act, section 5, that was approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act after the enactment day; and (b) a lease under that Act has not been granted for the land. (4) DOGIT land does not include land within the external boundaries of land mentioned in subsection (1)(a) if the land has, since the enactment day, become a road. 12 Aboriginal reserve land (1) Aboriginal reserve land is land that, at the beginning of the enactment day, is— Page 20 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 2 Basic concepts [s 12] (a) reserved and set apart under the Land Act 1962 for an Aboriginal reserve or for the benefit of Aboriginal inhabitants; or (b) within the external boundaries of an area of such land and— (i) subject to a lease granted under the Land Holding Act; or (ii) the subject of an application under the Land Holding Act, section 5, that had been approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act, but for which a lease under that Act has not been granted; and includes land reserved and set apart under the Land Act 1962 for any other public purpose if the land is declared by regulation to be land that was, or is included in land that was, at the beginning of the enactment day, being used as an Aboriginal reserve or for the benefit of Aboriginal people. (2) Also, Aboriginal reserve land includes land within the external boundaries of land mentioned in subsection (1)(a) if— (a) the land was the subject of an application under the Land Holding Act, section 5, that was approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act after the enactment day; and (b) a lease under that Act has not been granted for the land. (3) Further, Aboriginal reserve land includes land within the external boundaries of land mentioned in subsection (1)(a) if the land has, since the enactment day, ceased to be a road. (4) Aboriginal reserve land does not include land within the external boundaries of land mentioned in subsection (1)(a) if the land has, since the enactment day, become a road. Current as at 7 November 2013 Page 21
Aboriginal Land Act 1991 Part 2 Basic concepts [s 13] 13 Aurukun Shire lease land (1) Aurukun Shire lease land is land that, at the beginning of the enactment day, is— (a) demised to the council of the Shire of Aurukun under the Local Government (Aboriginal Lands) Act 1978 ; or Note For the Act mentioned in paragraph (a), see the Aurukun and Mornington Shire Leases Act 1978 . (b) within the external boundaries of that land and reserved and set apart for, or dedicated to, a public purpose under the Land Act 1962 , other than— (i) a road; or (ii) a stock route or associated reserve; and includes land within those external boundaries that has, since the enactment day, ceased to be a road if the land is declared by regulation to be transferable land. (2) Aurukun Shire lease land does not include land within the external boundaries of land mentioned in subsection (1)(a) if the land— (a) is a road that became a road after the enactment day and before the commencement of this subsection; or (b) becomes a road after the commencement. (3) In this section— road includes a road mentioned in the Aurukun and Mornington Shire Leases Act 1978 , section 4A(1). 14 Mornington Shire lease land (1) Mornington Shire lease land is land that, at the beginning of the enactment day, is— (a) demised to the council of the Shire of Mornington under the Local Government (Aboriginal Lands) Act 1978 ; or Page 22 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 2 Basic concepts [s 15] Note For the Act mentioned in paragraph (a), see the Aurukun and Mornington Shire Leases Act 1978 . (b) within the external boundaries of that land and reserved and set apart for, or dedicated to, a public purpose under the Land Act 1962 , other than— (i) a road; or (ii) a stock route or associated reserve; and includes land within those external boundaries that has, since the enactment day, ceased to be a road if the land is declared by regulation to be transferable land. (2) Mornington Shire lease land does not include land within the external boundaries of land mentioned in subsection (1)(a) if the land— (a) is a road that became a road after the enactment day and before the commencement of this subsection; or (b) becomes a road after the commencement. (3) In this section— road includes a road mentioned in the Aurukun and Mornington Shire Leases Act 1978 , section 4A(1). Division 4 Declarations about particular transferable land 15 Definition for div 4 In this division— relevant land means the following land, or a part of the land— (a) DOGIT land; (b) Aboriginal reserve land, other than land declared under a regulation for section 12; Current as at 7 November 2013 Page 23
Aboriginal Land Act 1991 Part 2 Basic concepts [s 16] (c) Aurukun Shire lease land; (d) Mornington Shire lease land. 16 Particular land may be declared to be not transferable land (1) The Minister may, by gazette notice, make a declaration that relevant land is not transferable land if the Minister is satisfied that— (a) housing or essential or other infrastructure is situated on the land; or (b) the land is being used as a town site or part of a town site; or (c) the land is being used as if it were a road; or (d) having regard to the nature or use of the land, it is not appropriate or practicable in the circumstances for the land to be granted in fee simple under this Act. (2) In considering whether to make a declaration under subsection (1)(d), the Minister may have regard to matters relating to the nature or use of the relevant land the Minister considers appropriate, including, for example— (a) whether the land is likely to be used as a town site or part of a town site; and (b) whether the land is in a condition suitable to be granted under this Act. (3) The Minister must not make a declaration under subsection (1)(d) before— (a) if no appeal is made to the Land Court against the decision to make the declaration—the period for making an appeal ends; or (b) if an appeal is made to the Land Court against the decision to make the declaration—the day the appeal is finally decided. Page 24 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 2 Basic concepts [s 17] 17 Notice of intention to make declaration (1) If the Minister intends to make a declaration under section 16, the Minister must— (a) give notice of the Minister’s intention to make the declaration to the trustee of the relevant land; and (b) as soon as practicable after giving the notice under paragraph (a), publish notice of the Minister’s intention to make the declaration in a newspaper or other publication circulating generally in the area where the relevant land is situated; and (c) consider all representations made under subsection (4). (2) The notice must— (a) include a description of the relevant land; and (b) state the following— (i) the reasons for the proposed declaration; (ii) that a person may make written representations to the Minister about the proposed declaration; (iii) the place where the representations may be made; (iv) the period in which the representations must be made. (3) The stated period must end at least 28 days after the notice is published. (4) A person may make written representations about the proposed declaration to the Minister within the stated period. 18 Minister to consider representations and give notice of decision (1) After considering all representations made under section 17(4) about the proposed declaration, the Minister must— (a) decide whether to make the declaration; and (b) give notice of the decision to— Current as at 7 November 2013 Page 25
Aboriginal Land Act 1991 Part 2 Basic concepts [s 19] (i) each person who made the representations; and (ii) the trustee of the relevant land, if the trustee did not make any representations. (2) The Minister may, after considering the representations, decide to make the declaration for all or a part of the relevant land described in the notice under section 17. (3) If the Minister decides to make the declaration, the notice must— (a) include a description of the relevant land to be declared not transferable under this division; and (b) state all of the following— (i) the provision under which the declaration is to be made; (ii) the reasons for the decision; (iii) if the Minister is to make the declaration under section 16(1)(d)—that a person who made representations about the proposed declaration may appeal against the decision to the Land Court within 28 days after receiving the notice, and how the person may appeal. 19 Notice about declarations—trustee As soon as practicable after a declaration that relevant land is not transferable land is made, the chief executive must give the trustee of the land notice of the declaration. 20 Notice about declarations—registrar (1) As soon as practicable after a declaration that relevant land is not transferable land is made, the chief executive must give the registrar notice of the declaration. (2) The notice must include particulars of the land the subject of the declaration. Page 26 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 2 Basic concepts [s 21] (3) The registrar must keep records that show the land is not transferable land. (4) The registrar must keep the records in a way that a search of the appropriate register kept by the registrar will show the land is not transferable land. (5) As soon as practicable after a declaration is repealed— (a) the chief executive must give the registrar notice of the fact; and (b) the registrar must amend the registrar’s records to show the land the subject of the repealed declaration is transferable land. 21 Requirements about plans of subdivision for declarations (1) This section applies if— (a) under section 16, the Minister declares land is not transferable land; and (b) a plan of subdivision is lodged for the land under the Land Title Act or Land Act for the purpose of identifying the land; and (c) the plan of subdivision has been consented to by the Minister. (2) The registrar must register the plan of subdivision without the consent of anyone whose consent would otherwise have been required under the relevant section if the plan otherwise complies with the relevant section. (3) In this section— relevant section means— (a) for freehold land—the Land Title Act, section 50; or (b) for other land—the Land Act, section 290J. Current as at 7 November 2013 Page 27
Aboriginal Land Act 1991 Part 2 Basic concepts [s 22] Division 5 Claimable and granted land 22 Meaning of claimable and granted land (1) Claimable land is land that may be claimed by, and granted under this Act to, a group of Aboriginal people. (2) Granted land is claimable land that has been claimed by, and granted under this Act to, a group of Aboriginal people. 23 Land that is claimable land (1) Subject to subsection (3), claimable land is— (a) available State land declared by regulation to be claimable land for this Act; or (b) Aboriginal land that— (i) is transferred land; and (ii) became transferred land before 22 December 2006. (2) A declaration under subsection (1)(a) may describe the available State land concerned in any way, including, for example, describing the land as land included in a stated area of the State. (3) A regulation may declare that an area of transferred land is not claimable land. (4) A declaration under subsection (3) may be made only if— (a) the land is primarily used or occupied by Aboriginal people for residential or community purposes; or (b) the Minister has consulted with Aboriginal people particularly concerned with the land and a substantial majority of the Aboriginal people are opposed to the land being claimable land. Page 28 Current as at 7 November 2013
Division 6 Aboriginal Land Act 1991 Part 2 Basic concepts [s 24] Available State land 24 Land that is available State land—general (1) Land is available State land if it is— (a) land, other than excluded land, in which no person other than the State has an interest; or (b) land, other than excluded land, that is subject to an interest granted by the State, if an available State land agreement is in force for the land; or (c) land inside the Torres Strait area that is land— (i) in which no person other than the State has an interest; and (ii) declared under a regulation to be available State land. (2) Subsection (1) is subject to sections 26 and 27. (3) In this section— interest means a legal or equitable interest in the land but does not include native title, a mining interest or an easement. 25 Agreement about particular land (1) The Minister may enter into a written agreement (an available State land agreement ) about land, other than excluded land— (a) with a person who has an interest in the land granted by the State; and (b) under which the State and the person agree that the land may be available State land. (2) The Minister may enter into an available State land agreement for particular land only if satisfied that entering into the agreement is appropriate in the circumstances having regard to an evaluation of the land under the Land Act, section 16. (3) An available State land agreement must provide that on the grant of the land under part 4 the person’s interest in the land Current as at 7 November 2013 Page 29
Aboriginal Land Act 1991 Part 2 Basic concepts [s 26] is to cease and a new interest granted by the trustee of the land is to have effect in substitution for the person’s interest. (4) However, if the interest is a lease granted under the Land Act the agreement may provide that the lease is to continue in force under section 45. (5) Subsection (6) applies if a proposed available State land agreement is to state that a person’s interest in land is to cease and a new interest granted by the proposed trustee of the land is to have effect in substitution for the person’s interest. (6) To remove any doubt, it is declared that the Minister need not enter into the available State land agreement unless satisfied a new interest granted by the proposed trustee of the land is to have effect in substitution for the person’s interest in the land. 26 Watercourses and lakes Available State land includes a watercourse or lake only to the extent the watercourse or lake is— (a) within the external boundaries of land that is otherwise available State land; and (b) capable of being owned in fee simple by a person other than the State. 27 Tidal land (1) Available State land includes tidal land only if the particular tidal land is declared by regulation to be available State land. (2) Subject to subsection (1), this Act applies to tidal land as if it were not tidal land. 28 Meaning of city or town land (1) Subject to subsection (2), city or town land is land that is within the boundaries of a city or town constituted under the Local Government Act 2009 or the City of Brisbane Act 2010 . Page 30 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 2 Basic concepts [s 29] (2) A regulation may change the boundaries of a city or town. (3) A regulation under subsection (2) has effect only for this Act. 29 Meaning of township land A regulation may declare that land is township land for this Act. 30 National parks To allay any doubt, it is declared that available State land includes any national park. 31 Land that is not available State land (1) To remove any doubt, it is declared that the following land is not available State land— (a) the waters of the sea, and the seabed, other than tidal land declared to be available State land under section 27(1); (b) freehold land; (c) an associated reserve; (d) land subject to a lease, licence or permit under the Land Act. (2) Despite subsection (1)(d), land subject to a lease, licence or permit under the Land Act is available State land if an available State land agreement is in force for the land. Division 7 Application of laws to Aboriginal land 32 Application of laws (1) To allay any doubt, it is declared that, except as provided by this Act or any other Act, the laws of the State apply to Current as at 7 November 2013 Page 31
Aboriginal Land Act 1991 Part 3 Formal expression of interest about land [s 33] Aboriginal land, persons and things on Aboriginal land, and acts and things done on Aboriginal land, to the same extent, and in the same way, as if the land were not Aboriginal land. (2) Without limiting subsection (1), to allay any doubt it is declared that this Act has effect subject to the Fisheries Act 1994 . Part 3 Formal expression of interest about land 33 Purpose of pt 3 The purpose of this part is to provide for a process under which Aboriginal people may formally express an interest to the chief executive in having particular land made transferable land. 34 Land to which pt 3 applies This part applies to the following land— (a) available State land; (b) land dedicated as a reserve under the Land Act; (c) a stock route; (d) land subject to an occupation licence; (e) land held under a lease under the Land Act by or for Aboriginal people. 35 Expression of interest in having land made transferable land (1) Aboriginal people particularly concerned with land mentioned in section 34 may, by notice given to the chief executive (an Page 32 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 36] expression of interest ), express an interest in having the land made transferable land. (2) The expression of interest must— (a) be in the approved form; and (b) include the details required in the approved form to enable the chief executive to properly consider the expression of interest. 36 Chief executive to consider expression of interest (1) The chief executive must consider each expression of interest. (2) Without limiting subsection (1), the chief executive may consider an expression of interest by evaluating the land to which it relates under the Land Act, section 16. 37 Consideration of expression of interest does not impose obligation on State The chief executive’s consideration of an expression of interest does not impose an obligation on the State under this Act to make the land to which it relates transferable land. Part 4 Grant of transferable land as Aboriginal land Division 1 Grant of land 38 Deeds of grant to be prepared (1) The chief executive must prepare such deeds of grant in fee simple as the Minister considers necessary and directs over transferable lands. Current as at 7 November 2013 Page 33
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 39] (2) Transferable land need not be surveyed but may be described in a deed of grant in such manner as the Minister directs. (3) The deed of grant must show that the land is held by the grantee— (a) if the grantee is a registered native title body corporate appointed as the grantee under section 39—for the native title holders of the land; or (b) otherwise— (i) for the benefit of Aboriginal people particularly concerned with the land and their ancestors and descendants; or (ii) if the land is prescribed DOGIT land that is to be held for the benefit of Aboriginal people and Torres Strait Islanders particularly concerned with the land—for the benefit of Aboriginal people and Torres Strait Islanders particularly concerned with the land, and their ancestors and descendants. (4) If the grantee is a registered native title body corporate appointed under section 39, the deed of grant also must include information to identify the native title holders of the land. (5) Subsections (2), (3) and (4) have effect despite any other Act or any rule of law or practice. 39 Appointment of registered native title body corporate as grantee to hold land for native title holders (1) This section applies to transferable land if— (a) under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and (b) there is a registered native title body corporate for the determination. (2) The Minister may, with the consent of the registered native title body corporate, appoint the body corporate to be the Page 34 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 40] grantee of the land under a deed of grant prepared under section 38. (3) If the Minister appoints the registered native title body corporate to be the grantee of the land under this section, the body corporate holds the land for the native title holders of the land the subject of the determination mentioned in subsection (1)(a). (4) In considering whether to appoint a registered native title body corporate under this section, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example— (a) whether the making of the proposed appointment was a matter relevant to the native title claim under the Commonwealth Native Title Act that resulted in the determination that native title existed in relation to all or a part of the land; and (b) whether any Aboriginal people particularly concerned with the land, other than the native title holders of the land, may be adversely affected by the proposed appointment; and (c) if the Minister is satisfied Aboriginal people particularly concerned with the land will be adversely affected by the proposed appointment—any action the registered native title body corporate intends to take to address the concerns of the Aboriginal people. 40 Appointment of grantee to hold land for benefit of Aboriginal people (1) This section applies if the Minister does not appoint, under section 39, a registered native title body corporate as the grantee of land. (2) The Minister may appoint as grantee of the land— (a) a CATSI corporation that is qualified to hold the land; or (b) a land trust; or Current as at 7 November 2013 Page 35
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 40] (c) the Aurukun Shire Council, if the land is Aurukun Shire lease land; or (d) the Mornington Shire Council, if the land is Mornington Shire lease land. (3) However, the Minister may appoint a CATSI corporation that is a registered native title body corporate as a grantee of land under subsection (2) only if— (a) under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and (b) the registered native title body corporate is registered on the National Native Title Register for the determination. (4) Before making the appointment, the Minister must consult with, and consider the views of, Aboriginal people particularly concerned with the land. (5) Subsection (4) does not apply if an ILUA has been entered into for the land and the entity is nominated in the ILUA as the proposed grantee for the land under this Act. (6) However, in considering whether to appoint an entity nominated in an ILUA as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example— (a) whether any Aboriginal people particularly concerned with the land may be adversely affected by the appointment; and (b) if the Minister is satisfied any Aboriginal people particularly concerned with the land will be adversely affected by the appointment—any action the entity intends to take to address the concerns of the Aboriginal people. (7) Also, in considering whether to appoint a registered native title body corporate as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers Page 36 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 41] relevant to the proposed appointment, including, for example, the matters mentioned in section 39(4)(b) and (c). (8) In appointing a grantee of land under this section, the Minister must have regard to any Aboriginal tradition applicable to the land. (9) Despite subsection (8), the Minister may appoint the Aurukun Shire Council or Mornington Shire Council to be a grantee if the Minister considers that in all the circumstances it is appropriate to do so. 41 Procedure for appointing particular grantee (1) Before appointing a grantee of land under this part, other than an entity nominated in an ILUA as the proposed grantee for the land, the Minister must— (a) publish notice of the Minister’s intention to appoint the grantee in a newspaper or other publication circulating generally in the area in which the land the subject of the deed of grant is situated; and (b) consider all representations made to the Minister under subsection (4). (2) The notice must— (a) include a description of the land; and (b) state the following— (i) the name of the proposed grantee; (ii) that an Aboriginal person particularly concerned with the land may make written representations to the Minister about the proposed appointment; (iii) the place where the representations may be made; (iv) the period in which the representations must be made. (3) The stated period must end at least 28 days after the notice is published. Current as at 7 November 2013 Page 37
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 42] (4) An Aboriginal person particularly concerned with the land may make written representations about the proposed appointment to the Minister within the stated period. 42 Minister to act as soon as possible (1) The Minister must, as soon as practicable after the commencement of sections 38 and 40, give all necessary directions under section 38, and make all necessary appointments under section 39 or 40, in relation to land that is transferable land on the enactment day. (2) If, under section 10(1)(e) or 12, land becomes transferable land after the enactment day, the Minister must, as soon as practicable after the land becomes transferable land, give all necessary directions under section 38, and make all necessary appointments under section 39 or 40, in relation to the land. (3) However, the Minister need not act as mentioned in subsections (1) and (2) in relation to land until the Minister is reasonably satisfied— (a) arrangements are in place to ensure— (i) the Commonwealth and the State can continue to provide services to communities on the land after it is granted; and (ii) the local government for the area in which the land is situated can continue to provide local government services to communities on the land after it is granted; and Example of an arrangement for paragraph (a) a lease (b) if the land is proposed to be granted to an entity other than a registered native title body corporate, arrangements that the Minister considers necessary— (i) to support use of the land by Aboriginal people particularly concerned with it; and Page 38 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 43] (ii) to ensure appropriate services, including, for example, social housing, public works and community infrastructure, can be provided for communities on the land; are in place to deal with matters relevant to the use of the land after it is granted; and Example of an arrangement for paragraph (b) an ILUA (c) if the land is or includes township land, arrangements are in place to provide for— (i) the land to continue to be used as township land; and (ii) residents of the township land to continue to live on and access the land, and obtain tenure over the land under this Act. Examples of an arrangement for paragraph (c) an ILUA, a townsite lease or another lease (4) In this section— local government services includes any services a local government might ordinarily provide for the community in its local government area. 43 Authority to grant fee simple in transferable land The Governor in Council may, under this Act and the Land Act, grant transferable land in fee simple. 44 Deed of grant takes effect on delivery (1) A deed of grant prepared under this division takes effect on the delivery of the deed of grant to the grantee. (2) On delivery of the deed of grant to the grantee, the land the subject of the deed becomes Aboriginal land that is transferred land. Current as at 7 November 2013 Page 39
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 45] (3) Subsection (1) has effect despite any other Act or any rule of law or practice. 45 Existing interests (1) If transferable land was, immediately before becoming Aboriginal land under this division, subject to an interest or benefited by an easement, the interest continues in force or the land continues to be benefited by the easement. (2) Without limiting subsection (1), if transferable land was, immediately before becoming Aboriginal land under this division, the subject of— (a) a lease granted under the Land Holding Act; or (b) a lease under the Land Act; or (c) a trustee (Aboriginal) lease; or (d) a lease, if it is a sublease of the Aurukun Shire lease or a sublease of the Mornington Shire lease; the trustee of the land is, by operation of this section, substituted for the lessor as a party to the lease. (3) The terms of a lease mentioned in subsection (2) are not affected by the operation of this section, section 46 or any other provision of this Act and, for the purposes of those terms, the Land Act continues to apply to a lease under that Act, with all necessary modifications and such modifications as are prescribed, as if the lease continued to be such a lease and the trustee of the land were the lessor. (4) However, subsection (5) applies to an interest in transferable land (the previous interest ) that, under an available State land agreement, is to cease on the grant of the land under this part and a new interest granted by the trustee of the land is to have effect in substitution for the previous interest on the grant of the land. (5) Despite subsections (1) to (3), on the grant of the land the previous interest ceases. (6) Subsection (5) applies despite any other Act. Page 40 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 45A] (7) In this section— Aurukun Shire lease means the lease mentioned in section 48(1) granted to the Aurukun Shire Council. interest includes— (a) native title; and (b) a right of a local government to access, occupy, use or maintain a facility on the land; and (c) an interest in favour of the State or Commonwealth other than an interest that is not registered. Mornington Shire lease means the lease mentioned in section 48(1) granted to the Mornington Shire Council. 45A Existing interests held by local government (1) This section applies if a local government has an existing interest under section 45 to access, occupy, use or maintain a facility on Aboriginal land. (2) If the local government does not intend to continue to access, occupy, use or maintain the facility, the local government must give the trustee of the land notice of that fact. (3) If subsection (2) does not apply, the local government and the trustee of the land must use their best endeavours to provide for the continued access, occupation, use or maintenance of the facility under a registered interest in the land given by the trustee of the land. 46 Interests to be endorsed on deed (1) If land the subject of a deed of grant prepared under section 38 is, at the beginning of the enactment day, subject to, or subsequently becomes subject to, an interest (other than an interest in favour of the State or Commonwealth that is not registered) and the interest is created under the Aurukun and Mornington Shire Leases Act 1978 , the council of the relevant shire must, as soon as practicable after being requested so to do by the chief executive, give to the chief executive the Current as at 7 November 2013 Page 41
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 47] original or an office copy of the instrument under which the interest arose. (2) The chief executive must endorse on the deed, in the proper order of priority— (a) the instruments— (i) given to the chief executive under subsection (1); or (ii) created or registered under the Land Act and held by the chief executive; before the issue of the deed; and (b) if the land was previously held under a deed of grant in trust—any existing instruments that were endorsed on the deed of grant in trust. (3) An instrument endorsed on the deed of grant under subsection (2) has effect as a registered instrument on the deed under the Land Title Act. (4) If the registrar of titles is given notice of the creation of an interest after the issue of the deed of grant, the registrar of titles must make an appropriate note in the register. 47 Cancellation of deed of grant in trust (1) This section applies if a deed of grant (the new deed ) over all or part of the land comprised in a deed of grant in trust takes effect under section 44. (2) The deed of grant in trust is cancelled to the extent of the new deed. 48 Cancellation of leases over Aurukun and Mornington Shire lease lands (1) When a deed of grant over the whole or a part of Aurukun Shire lease land or Mornington Shire lease land takes effect under section 44, the lease granted to the relevant council Page 42 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 49] under the Aurukun and Mornington Shire Leases Act 1978 is cancelled to the extent of the deed of grant. (2) To allay any doubt, if a lease is cancelled only in relation to part of the land, a reference in the Aurukun and Mornington Shire Leases Act 1978 to the demised land is a reference to the remaining part of the land. (3) Despite the cancellation of a lease under this section, a lease in the form of a sublease, as mentioned in section 45(2)(d), continues in force as a lease under section 45, with the trustee of the Aboriginal land as the lessor. 49 Land Court may resolve difficulties (1) If a difficulty arises in— (a) the application of this division to a particular matter; or (b) the application, to a particular matter, of a provision of another Act because of the operation of this division; the Land Court may, on the application of the chief executive or an interested person, make such order as it considers proper to resolve the difficulty. (2) An order made under subsection (1) has effect despite anything contained in this division or in an Act in force immediately before the commencement of this section. Division 2 Approvals to change how land is held 50 Application to hold Aboriginal land for native title holders (1) This section applies if— (a) a CATSI corporation that is the trustee of Aboriginal land becomes a registered native title body corporate after it became the trustee of the land; and Current as at 7 November 2013 Page 43
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 51] (b) under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and (c) the registered native title body corporate is registered on the National Native Title Register for the determination. (2) The registered native title body corporate may apply to the Minister in the approved form for an approval to hold the land under this Act for the native title holders of the land. 51 Decision on application (1) The Minister must consider an application made under section 50 and decide— (a) to give the approval; or (b) to refuse the application. (2) In considering the application, the Minister must have regard to— (a) whether any Aboriginal people particularly concerned with the land, other than native title holders of the land, may be adversely affected by the approval; and (b) if the Minister is satisfied Aboriginal people particularly concerned with the land will be adversely affected by the approval—any action the registered native title body corporate intends to take to address the concerns of the Aboriginal people. (3) The Minister may give the approval only if, having regard to the matters mentioned in subsection (2), the Minister is satisfied it is appropriate in the circumstances to give the approval. 52 Notices about decision (1) The Minister must give the registered native title body corporate notice of the Minister’s decision under section 51. Page 44 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 53] (2) If the Minister gives the approval, the chief executive must notify the approval by gazette notice. (3) The gazette notice must— (a) state the name of the registered native title body corporate; and (b) include a description of the Aboriginal land held by it that relates to the approval. (4) As soon as practicable after the gazette notice is published, the chief executive must give the registrar of titles notice of the approval. (5) The notice must include a description of the Aboriginal land held by the registered native title body corporate for the native title holders of the land. (6) On receiving the notice, the registrar must record in the freehold land register that the land is held under this Act by the registered native title body corporate for the native title holders of the land. (7) In this section— description , in relation to land, means the description of the land as shown in the freehold land register. 53 Effect of gazette notice On publication of the gazette notice, the registered native title body corporate is taken to hold the land under this Act for the native title holders of the land. Division 3 Reservations 54 Resource reservations under resource Acts A deed of grant of transferred land must contain the reservations to the State taken to be contained in the grant under the following— Current as at 7 November 2013 Page 45
Aboriginal Land Act 1991 Part 4 Grant of transferable land as Aboriginal land [s 55] the Geothermal Energy Act 2010 , section 29 the Greenhouse Gas Storage Act 2009 , section 28 the Mineral Resources Act 1989 , section 8 the Petroleum Act 1923 , section 10 the Petroleum and Gas (Production and Safety) Act 2004 , section 27. 55 Reservations of forest products and quarry material etc. (1) A deed of grant of transferred land may contain a reservation to the State of forest products or quarry material above, on or below the surface of the land only if it is declared by regulation that— (a) the forest products or quarry material is of vital State interest; and (b) the rights in the forest products or quarry material are reserved to the State. (2) If a deed of grant of transferred land does not contain a reservation of particular forest products or quarry material above, on or below the land, a regulation may declare that— (a) the forest products or quarry material are of vital State interest; and (b) rights in the forest products or quarry material are acquired by the State. (3) If a regulation is made under subsection (1) or (2), the trustee of the land is entitled to be paid by the State such reasonable compensation because of the reservation or acquisition as is agreed between the State and the trustee or, failing agreement, as is determined by the Land Court. (4) Despite subsection (1), a permit, lease, licence, agreement or contract granted or made under the Forestry Act 1959 , before the day on which land became transferred land, in relation to the getting and selling of forest products or quarry material above, on or below the surface of the land, continues in force as if this section had not been enacted. Page 46 Current as at 7 November 2013
Part 5 Aboriginal Land Act 1991 Part 5 Claims for claimable land [s 56] Claims for claimable land Division 1 Requirements for claims 56 Duly made claims A claim for claimable land must comply with the following provisions in order to be duly made— (a) section 57; (b) section 58; (c) section 59; (d) section 60. 57 Who may make a claim (1) A group of Aboriginal people may make a claim for an area of claimable land. (2) The claim may be made by members of a group of Aboriginal people on behalf of those Aboriginal people and other Aboriginal people who are members of the group. 58 Grounds on which claim may be made A claim under this Act may only be made on 1 or more of the following grounds— (a) traditional affiliation; (b) historical association. 59 How claim is to be made A claim under this Act must— (a) be made by written application to the chief executive; and Current as at 7 November 2013 Page 47
Aboriginal Land Act 1991 Part 5 Claims for claimable land [s 60] (b) be in the appropriate form made available by the chief executive; and (c) include— (i) a description of the land claimed and a map showing clearly the location of the land; and (ii) a statement of the ground on which the claim is made; and (iii) a description of the group of Aboriginal people making the claim; and (iv) a statement of the responsibilities in relation to the land that the claimants agree to assume if the land is granted because of the claim. 60 Time limit for making of claims A claim under this Act must be made not later than 15 years after the commencement of section 57. Note The time for making a claim ended on 22 December 2006. Division 2 Determination of claims 61 Deciding whether claim duly made (1) If a claim is made to the chief executive, the chief executive must decide whether the claim appears to be duly made. (2) If the chief executive is satisfied that the claim appears to be duly made, the chief executive must accept the application and refer the claim to the Land Tribunal. (3) If the chief executive is not satisfied, the chief executive must refuse to accept the application. (4) The chief executive must notify the claimants, in writing, of his or her decision. Page 48 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 5 Claims for claimable land [s 62] (5) If the chief executive refuses to accept the application, the chief executive must also notify the claimants, in writing, of his or her reasons for refusing to accept the application. (6) If the chief executive refuses to accept the application, the claimants may ask the chairperson of the Land Tribunal to decide whether the claim is duly made. (7) If the chairperson decides that the claim is duly made, the chairperson must direct the chief executive to accept the application under subsection (2). (8) If the chairperson decides that a claim is not duly made, the chairperson must notify the claimants, in writing, of his or her reasons for refusing to accept the application. (9) Despite subsection (1), if a recommendation has been made to the Minister under section 71 for a grant in fee simple, another claim may not be duly made over the same land. (10) Nothing in this section prevents the chief executive from accepting an application if— (a) a claim (the repeat claim ) has been made to the chief executive under section 59 and it appears to the chief executive that the land to which the claim relates is completely or partly the same as land that has previously been claimed (the previous claim ); and (b) no recommendation was made to the Minister under section 71 about the previous claim. 62 Tribunal to notify making of claims (1) As soon as practicable after a claim is referred to the Land Tribunal, the tribunal must comply with this section. (2) The tribunal must cause copies of the application to be made available for public inspection at offices of the tribunal during ordinary working hours and at such other places as it considers appropriate. Current as at 7 November 2013 Page 49
Aboriginal Land Act 1991 Part 5 Claims for claimable land [s 63] (3) The tribunal must publish notice of the claim in the gazette, a newspaper circulating throughout the State and such regional newspapers as the tribunal considers appropriate. (4) The tribunal must give notice of the claim, by letter or such other means as it considers more effective, to each person that it is aware is or may be an interested person. (5) A notice under subsection (3) or (4) must include a statement to the effect that— (a) copies of the application are available for public inspection at places, and during times, specified in the notice; and (b) interested persons may, within the period specified in the notice, apply to the tribunal to be made a party to the proceeding for the hearing of the claim; and (c) any other group of Aboriginal people may, within that period, make a claim for the whole or part of the land the subject of the claim or for such an area and additional area of claimable land. (6) The period specified in a notice for the purposes of subsection (5)(b) must be a period of not less than 60 days after the publication of notice of the claim in the gazette. 63 Joint hearing of claims If— (a) a claim (the first claim ) is duly made under this Act by a group of Aboriginal people for an area of claimable land; and (b) a claim (the subsequent claim ) is duly made under this Act by another group of Aboriginal people for the whole or a part of the area of claimable land (whether or not an additional area of claimable land is also claimed); and (c) the subsequent claim is referred to the Land Tribunal within the period specified in the notice published under Page 50 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 5 Claims for claimable land [s 64] section 62 in relation to the first claim or before the hearing of the first claim has started; then— (d) the first claim and the subsequent claim are to be heard and determined together; and (e) if the subsequent claim does not include an additional area of claimable land—section 62 does not apply to the subsequent claim. 64 Repeat claims If a repeat claim mentioned in section 61(10) has been referred to the Land Tribunal, the tribunal may hear the repeat claim only if a presiding member is satisfied that the repeat claim could be established on 1 or more grounds mentioned in section 65 or 66 because— (a) the basis on which the repeat claim is made is substantially different to the basis on which the previous claim was made; or (b) information has become available to the tribunal that was not previously available and, if the information had previously been available to the tribunal, it may have affected the decision of the tribunal on the previous claim. 65 Establishment of claim on ground of traditional affiliation (1) A claim by a group of Aboriginal people for an area of claimable land on the ground of traditional affiliation is established if the Land Tribunal is satisfied that the members of the group have a common connection with the land based on spiritual and other associations with, rights in relation to, and responsibilities for, the land under Aboriginal tradition. (2) In determining the claim, the tribunal must consult with, and consider the views of, the persons recognised under Aboriginal tradition as the elders of the group of Aboriginal people. Current as at 7 November 2013 Page 51
Aboriginal Land Act 1991 Part 5 Claims for claimable land [s 66] 66 Establishment of claim on ground of historical association (1) A claim by a group of Aboriginal people for an area of claimable land on the ground of historical association is established if the Land Tribunal is satisfied that the group has an association with the land based on them or their ancestors having, for a substantial period, lived on or used— (a) the land; or (b) land in the district or region in which the land is located. (2) Without limiting subsection (1), the claim may be established whether or not all or a majority of the members of the group have themselves lived on or used such land. (3) In determining the claim, the tribunal must consult with, and consider the views of, the persons recognised under Aboriginal tradition as the elders of the group of Aboriginal people. 67 Claim may be established for only part of land claimed A claim by a group of Aboriginal people for an area of claimable land may be established for a part only of the land. 68 Claim may be established on more than 1 ground A claim by a group of Aboriginal people for an area of claimable land may be established on more than 1 ground. 69 Time at which it is to be decided whether land is claimable land The question whether land claimed under this Act is claimable land is to be decided as at the beginning of the day on which the relevant claim for the land was made under this part. Page 52 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 5 Claims for claimable land [s 70] 70 Amendment of claim (1) A claim under this Act may be amended with the leave of the Land Tribunal. (2) If a claim is amended to include land that was not claimed in the original claim, section 62 applies as if a separate claim had been made for that land and the claim had been referred to the tribunal. 71 Recommendation to Minister (1) Subject to section 72, if a claim by a group of Aboriginal people for an area of claimable land is established, the Land Tribunal must recommend to the Minister that the land be granted in fee simple to the group. (2) When the tribunal makes a recommendation under subsection (1), the tribunal must also make recommendations to the Minister as to the entity, or the persons who are to be represented by an entity, that should be appointed to be the grantee of the land as trustee for the benefit of the group of Aboriginal people concerned. (3) In making recommendations under subsection (2), the tribunal must, unless it is satisfied that exceptional circumstances exist that require it to do otherwise, act in a manner that is consistent with— (a) any Aboriginal tradition applicable to the land; and (b) the views of the group of Aboriginal people concerned so far as they are not inconsistent with any such Aboriginal tradition. (4) When the tribunal makes a recommendation under subsection (1), the tribunal must advise the Minister, in writing, in relation to each of the following matters— (a) the number of Aborigines who will be advantaged by a grant of the land, and the nature and extent of the advantage that will accrue to them; (b) the responsibilities in relation to the land that the group of Aboriginal people concerned agree to assume if the Current as at 7 November 2013 Page 53
Aboriginal Land Act 1991 Part 5 Claims for claimable land [s 72] land is granted because of the claim, and how those responsibilities should be expressed in any deed of grant for the land; (c) the detriment to persons or communities (including other Aboriginal groups and Torres Strait Islanders) that might result from a grant of the land; (d) the effect (if any) that a grant of the land is likely to have on the existing and proposed patterns of land usage in the region of the land. (5) In this section— Minister means the Minister administering the Land Act. 72 Resolution of conflicting claims (1) Subject to subsection (2), if claims by 2 or more groups of Aboriginal people for the same area of claimable land are established on the same ground, the Land Tribunal must recommend to the Minister that the land be granted jointly to the groups. (2) If— (a) more than 1 claim is established; and (b) each of the competing claims is established on 1 or more grounds; and (c) 1 or more of the claims is established on the ground of traditional affiliation; a recommendation must not be made in favour of any other group on the ground of historical association. (3) In this section— Minister means the Minister administering the Land Act. 73 Notification of parties (1) If a claim by a group of Aboriginal people for an area of claimable land is established on 1 or more grounds, the Land Page 54 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 6 Grant of claimable land as Aboriginal land [s 74] Tribunal must notify each party to the proceeding, in writing— (a) that the claim has been so established; and (b) of the recommendations (if any) made to the Minister in relation to the claim. (2) If a claim by a group of Aboriginal people for an area of claimable land is not established on 1 or more grounds, the Land Tribunal must notify each party to the proceeding, in writing, that the claim has not been so established. (3) In this section— Minister means the Minister administering the Land Act. Part 6 Grant of claimable land as Aboriginal land Division 1 Grant of land 74 Deeds of grant to be prepared (1) If— (a) the Land Tribunal recommends to the Minister that an area of land be granted in fee simple to a group of Aboriginal people; and (b) the Minister is satisfied that the land, or a part of the land, should be so granted to the group; the Minister must direct the chief executive to prepare a deed of grant in fee simple over the land or that part of the land. (2) The land need not be surveyed but may be described in the deed of grant in such manner as the Minister directs. Current as at 7 November 2013 Page 55
Aboriginal Land Act 1991 Part 6 Grant of claimable land as Aboriginal land [s 75] (3) The deed of grant must show that the land is held by the grantees for the benefit of the group of Aboriginal people and their ancestors and descendants. (4) The deed of grant must specify— (a) the ground on which the Land Tribunal recommended that the land be granted; and (b) the responsibilities that the group of Aboriginal people have agreed to assume in relation to the land. (5) Subsections (2), (3) and (4) have effect despite any other Act or any rule of law or practice. 75 Appointment of grantee (1) The Minister may appoint the following entities as grantee of land the subject of a deed of grant prepared under section 74— (a) a CATSI corporation that is qualified to hold the land; or (b) a land trust. (2) However, the Minister may appoint a CATSI corporation that is a registered native title body corporate as a grantee of land under subsection (1) only if— (a) under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and (b) the registered native title body corporate is registered on the National Native Title Register for the determination. (3) Before making the appointment, the Minister— (a) must consult with, and consider the views of, the group of Aboriginal people concerned; and (b) unless the Minister is satisfied that exceptional circumstances exist that require the Minister to do otherwise, must have regard to— (i) any Aboriginal tradition applicable to the land; and Page 56 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 6 Grant of claimable land as Aboriginal land [s 76] (ii) the views of the group to the extent the views are not inconsistent with any Aboriginal tradition applicable to the land. (4) Also, in considering whether to appoint a registered native title body corporate as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example— (a) whether any of the group of Aboriginal people concerned, other than the native title holders of the land, may be adversely affected by the proposed appointment; and (b) if the Minister is satisfied any of the group of Aboriginal people concerned will be adversely affected by the proposed appointment—any action the registered native title body corporate intends to take to address the concerns of the Aboriginal people. 76 Authority to grant fee simple in claimable land The Governor in Council may, under this Act and the Land Act, grant claimable land in fee simple. 77 Deed of grant takes effect on delivery (1) A deed of grant prepared under this division takes effect on the delivery of the deed of grant to the grantee. (2) On delivery of the deed of grant to the grantee, the land the subject of the deed becomes granted land and, if the land is not already Aboriginal land, becomes Aboriginal land. (3) Subsection (1) has effect despite any other Act or any rule of law or practice. 78 Existing interests (1) If granted land was, immediately before becoming Aboriginal land under this division, subject to an interest or benefited by Current as at 7 November 2013 Page 57
Aboriginal Land Act 1991 Part 6 Grant of claimable land as Aboriginal land [s 79] an easement, the interest continues in force or the land continues to be benefited by the easement. (2) In this section— interest includes native title, but does not include an interest in favour of the State or Commonwealth that is not registered. 79 Cancellation of existing deed of grant (1) If— (a) land is the subject of a deed of grant issued under part 4 (the existing deed ); and (b) a deed of grant (the new deed ) over the whole or a part of the land takes effect under section 77; the existing deed is cancelled, to the extent of the new deed, by operation of this section. (2) The Minister must cause notice to be given to the registrar of titles of the day of delivery of the new deed to the grantees and the registrar must note the cancellation of the existing deed in the register accordingly. (3) The trustee that holds the existing deed must, on receipt of notice by the Minister so to do, deliver the existing deed to the chief executive within such reasonable period, as is specified in the notice. (4) If the existing deed is cancelled only in relation to part of the land, the chief executive must prepare and issue to the trustee that holds the deed a deed of grant under the Land Act (the replacement deed ) over the remaining part of the land. (5) The replacement deed is, for the purposes of this Act, taken to be a deed of grant prepared and issued under part 4. (6) The chief executive must endorse on the replacement deed, in the proper order of priority, the instruments under which existing relevant interests arose. Page 58 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 6 Grant of claimable land as Aboriginal land [s 80] 80 Land Court may resolve difficulties (1) If a difficulty arises in— (a) the application of this division to a particular matter; or (b) the application, to a particular matter, of a provision of another Act because of the operation of this division; the Land Court may, on the application of the chief executive or an interested person, make such order as it considers proper to resolve the difficulty. (2) An order made under subsection (1) has effect despite anything contained in this part or in an Act in force immediately before the commencement of this section. Division 2 Reservations 81 Resource reservations under other Acts A deed of grant of granted land and an Aboriginal lease must contain the reservations to the State taken to be contained in the grant under the following— the Geothermal Energy Act 2010 , section 29 the Greenhouse Gas Storage Act 2009 , section 28 the Mineral Resources Act 1989 , section 8 the Petroleum Act 1923 , section 10 the Petroleum and Gas (Production and Safety) Act 2004 , section 27. 82 Reservations of forest products and quarry material etc. (1) A deed of grant of granted land that was transferred land may contain a reservation to the State of forest products or quarry material above, on or below the surface of the land only if it is declared by regulation that— Current as at 7 November 2013 Page 59
Aboriginal Land Act 1991 Part 6 Grant of claimable land as Aboriginal land [s 83] (a) the forest products or quarry material is of vital State interest; and (b) the rights in the forest products or quarry material are reserved to the State. (2) A deed of grant of granted land that was not transferred land must contain a reservation to the State of— (a) all forest products; and (b) all quarry material; above, on and below the surface of the land. (3) Despite subsection (1), a permit, lease, licence, agreement or contract granted or made under the Forestry Act 1959 , before the day on which transferred land became granted land, in relation to the getting and selling of forest products or quarry material above, on or below the surface of the land, continues in force as if this section had not been enacted. (4) If a deed of grant of granted land that was transferred land does not contain a reservation of particular forest products or quarry material above, on or below the land, a regulation may declare that— (a) the forest products or quarry material is of vital State interest; and (b) the rights in the forest products or quarry material are acquired by the State. (5) If a regulation is made under subsection (1) or (4), the trustee of the land is entitled to be paid by the State such reasonable compensation because of the reservation or acquisition as is agreed on between the State and the trustee or, failing agreement, as is determined by the Land Court. Division 3 Access to coastal land 83 Rights of access preserved (1) If— Page 60 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 7 Register of entities holding Aboriginal land [s 84] (a) land that is an area of coast becomes Aboriginal land because of a claim under this Act; and (b) a right of access to or across the area (whether by persons generally or particular persons) existed immediately before the land became claimable land; the right of access continues in force as if the land had not become Aboriginal land. (2) In this section— coast means all land, including the bed and banks of any river, stream, watercourse, lake or other body of water, that is— (a) above the highest astronomical tide mark and within 400m, measured by the shortest distance, of that mark; or (b) below the highest astronomical tide mark. highest astronomical tide means the highest level of the tides that can be predicted to occur under average meteorological conditions and under any combination of astronomical conditions. Part 7 Register of entities holding Aboriginal land 84 Keeping register of entities holding Aboriginal land (1) The chief executive must keep a register of entities that hold Aboriginal land (the Aboriginal land holding entity register ). (2) The register must contain the following information for each entity— (a) the entity’s name, address for the service of documents and contact telephone number; (b) a description of the Aboriginal land held by the entity. Current as at 7 November 2013 Page 61
Aboriginal Land Act 1991 Part 7 Register of entities holding Aboriginal land [s 85] (3) If the entity is a land trust, the register must also contain all the following information about the land trust— (a) the names and addresses of all the current members of the land trust; (b) the name of each member of the land trust’s executive committee, and the position held by the member; (c) a contact telephone number for the chairperson and secretary of the land trust; (d) a copy of the land trust’s adopted rules; (e) copies of annual financial statements and audit reports the chief executive receives from the land trust under this Act; (f) a statement about whether or not the land trust has, for each financial year, operated in compliance with the Act. Note Under section 258, the chief executive must record in the register whether or not a land trust has operated in compliance with the Act. (4) The chief executive may keep the register in the form the chief executive considers appropriate, including, for example, in electronic form. 85 Giving information for register to the chief executive (1) Each entity, other than a land trust, that holds Aboriginal land must— (a) as soon as practicable after the end of each financial year, give to the chief executive the information mentioned in section 84(2) for the entity; and (b) as soon as practicable after any of the information changes—give the chief executive a notice of the change. Page 62 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 7 Register of entities holding Aboriginal land [s 86] (2) A land trust must give to the chief executive all the information the chief executive reasonably requires to ensure the information in the register about the land trust is accurate. 86 Obtaining information in register (1) A person may, in the approved form, ask the chief executive to give the person information included in the Aboriginal land holding entity register. (2) The chief executive must, if asked under subsection (1), give the person the information included in the publicly available part of the register. (3) The chief executive may, if asked under subsection (1), give the person the additional information for a land trust only if the chairperson of the land trust consents in writing to the giving of the information. (4) In this section— additional information , for a land trust, means the following— (a) the names of all the current members of the land trust; (b) the information mentioned in section 84(3)(b), (d) or (e). publicly available part , of the Aboriginal land holding entity register, means the part of the register containing all the following information— (a) the information mentioned in section 84(2); (b) for a land trust— (i) the names of the chairperson and secretary of the land trust; and (ii) the information mentioned in section 84(3)(f). Current as at 7 November 2013 Page 63
Aboriginal Land Act 1991 Part 8 Transfer of Aboriginal land by Minister [s 87] Part 8 Transfer of Aboriginal land by Minister Division 1 Preliminary 87 Purpose of pt 8 The purpose of this part is to provide for— (a) particular Aboriginal land to vest in the State; and (b) the transfer of Aboriginal land that vests in the State to another entity to hold as Aboriginal land. 88 Application of pt 8 This part applies to Aboriginal land that is or was held by a CATSI corporation for the benefit of Aboriginal people particularly concerned with the land and their ancestors and descendants, if— (a) under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cwlth)— (i) the corporation stops being registered; and (ii) the land is vested in the State; or (b) the corporation is no longer qualified to hold the land. Division 2 Vesting and transfer of land 89 Vesting of land in the State (1) If the CATSI corporation is no longer qualified to hold the land, the Minister may, by gazette notice, declare that the land vests in the State. (2) The gazette notice must— (a) include a description of the land; and Page 64 Current as at 7 November 2013
Aboriginal Land Act 1991 Part 8 Transfer of Aboriginal land by Minister [s 90] (b) state the reason that the CATSI corporation is no longer qualified to hold the land. 90 How land is held by the State (1) This section applies if— (a) the land vests in the State under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cwlth); or (b) the land vests in the State under section 89. (2) The land— (a) vests in the State in fee simple; and (b) the State holds the land for the benefit of the persons for whose benefit the land was held immediately before it vested in the State. 91 Minister to transfer land as soon as practicable (1) The Minister must, by gazette notice as soon as practicable after the land vests in the State, transfer the land under this part. (2) The gazette notice must include— (a) a description of the land being transferred; and (b) the name of the entity to whom the land is transferred. 92 Transfer to registered native title body corporate to hold for native title holders (1) This section applies if— (a) under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and (b) there is a registered native title body corporate for the determination. Current as at 7 November 2013 Page 65
Aboriginal Land Act 1991 Part 8 Transfer of Aboriginal land by Minister [s 93] (2) The Minister may, with the consent of the registered native title body corporate, transfer the land to it. (3) If the Minister transfers the land under this section to a registered nati