The Land and Other Legislation Amendment Act 2014 (Qld) amends the Native Title (Queensland) Act 1993, supported by amendments to the Acquisition of Land Act 1967 (Qld), to provide another way in which non-native title rights and interests can be acquired where native title rights and interests are being compulsorily acquired to assist in meeting requirements under the Native Title Act 1993 (Cth).
Section 144 of the Native Title (Queensland) Act 1993 is amended to extend the reach of compulsory acquisitions to compulsorily acquire non-native title rights and interests in relation to the land and waters at the same time native title rights are being compulsorily acquired. Under s 24MD(2)(c) of the Native Title Act 1993 (Cth), a compulsory acquisition of native title only has the effect of extinguishment when the whole or equivalent part of all non-native title rights and interests are also acquired.
The insertion of ss 4A and 4B into the Acquisition of Land Act 1967 (Qld) supports the amendment to s 144 of the Native Title (Queensland) Act 1993 . This section provides that the application of the provision must be applied to the taking of the non-native title rights or interests to the greatest practicable extent as if the right or interest were land to which the compulsory acquisition applies. Section 4B provides for the taking of non-native title rights and interests which are a resource interests. In this instance, written notice is required to be given by the entity taking the resource to the relevant chief executive for the resource interest, and further that compensation is limited to that which applies under the relevant resource interests compensation provision.
For further information, see the Explanatory Note.
Relevant provisions
Acquisition of Land Act 1967 (Qld)
s 4A Taking non-native title right or interest
(1) This section applies to the taking of a non-native title right or interest if—
(a) the taking happens under a compulsory acquisition Act; and
(b) the taking under the compulsory acquisition Act—
(i) is authorised under the Native Title (Queensland) Act 1993, section 144(1)(b); or
(ii) is authorised under the compulsory acquisition Act but happens at the same time as the taking under that Act of native title rights and interests as authorised under the Native Title (Queensland) Act 1993, section 144(1)(a).
(2) The compulsory acquisition Act, including to the extent appropriate this Act, must be applied to the taking of the non-native title right or interest to the greatest practicable extent as if the right or interest were land to which the compulsory acquisition Act otherwise applies.
(3) However, when the taking has effect, despite any compulsory acquisition Act, including any other provision of this Act, the right or interest is completely extinguished to the extent it relates to land stated in the gazette resumption notice for the taking.
(4) Without limiting subsection (1), taking that happens under a compulsory acquisition Act includes taking under a compulsory acquisition Act other than this Act if either of the following applies—
(a) the compulsory acquisition Act authorises a constructing authority to take land under this Act;
(b) the compulsory acquisition Act authorises a constructing authority to take land under that Act but requires provisions of this Act to be applied to any aspect of the taking.
(5) In this section—
gazette resumption notice, for the taking of a right or interest, includes any instrument giving effect to the taking.
s 4B Taking non-native title right or interest that is a resource interest
(1) This section applies to the taking of a non-native title right or interest if—
(a) it is a taking to which section 4A applies; and
(b) the right or interest is a resource interest.
(2) The entity taking the resource interest must give the relevant chief executive for the resource interest a written notice that—
(a) states the details of the extinguishment of the resource interest; and
(b) asks for the extinguishment to be recorded in the appropriate register kept by the chief executive; and
(c) is accompanied by a certified copy of the gazette resumption notice mentioned in section 4A(3).
(3) Compensation to be paid under the compulsory acquisition Act in relation to the taking of the resource interest is limited in the way provided for in the resource compensation provision for the resource interest.
Example—
If the resource interest is a mining tenement interest under the Mineral Resources Act 1989, on an application of section 10AAD of that Act, allowance can not be made for the value of minerals known or supposed to be on or below the surface of, or mined from, the land the subject of the mining tenement interest.
(4) In this section—
relevant chief executive, for a resource interest, means the chief executive of the department administering the resource interest compensation provision for the resource interest.
Native Title (Qld) Act 1993
s 144 Compulsory acquisition of native title
(1) The power of compulsory acquisition under a compulsory acquisition Act includes—
(a) power to compulsorily acquire, for the purposes of the compulsory acquisition Act, native title rights and interests in relation to any land or waters; and
(b) if native title rights and interests are compulsorily acquired in relation to land or waters, power to compulsorily acquire at the same time any non-native title rights and interests in relation to the land or waters.
(2) To remove any doubt, it is declared that—
(a) native title rights and interests in relation to any land may be acquired under a compulsory acquisition Act even though the Act would not otherwise apply to the land; and
(b) all non-native title rights and interests in relation to the land may be acquired in accordance with subsection (1)(b) under a compulsory acquisition Act even though the Act would not otherwise apply to the land.
Examples—
1 As a result of the operation of subsection (2)(a), native title rights and interests in relation to unallocated State land under the Land Act 1994 may be acquired under the Acquisition of Land Act 1967 even though the Acquisition of Land Act 1967 would not otherwise apply to the unallocated State land.
2 As a result of the operation of subsection (2)(b), if native title rights and interests in relation to particular unallocated State land are acquired under the Acquisition of Land Act 1967, all non-native title rights and interests in relation to that unallocated State land may also be acquired at the same time under the Acquisition of Land Act 1967 even though the Acquisition of Land Act 1967 would not otherwise apply to the unallocated State land.
(3) Subsection (2) does not limit subsection (1).
(3A) Subsections (3B) and (3C) apply if—
(a) native title rights and interests in relation to land or waters are acquired under a compulsory acquisition Act; and
(b) the holders of the rights and interests are entitled to compensation under the Commonwealth Native Title Act for the acquisition.
(3B) If the person who acquires the rights and interests is not the State, that person is liable to pay the compensation.
(3C) However, the State is liable to pay the compensation if, when the compensation is required to be paid, it is not reasonably practicable for the holders to otherwise recover the compensation.
Note—
See the Native Title Act 1993 (Cth), section 24MD(4)(b)(i) in relation to the recovery of compensation.
(4) In this section—
compulsory acquisition Act means an Act, other than the Land Act 1994, providing for compulsory acquisition in relation to land or waters, including, for example, any of the following—
Acquisition of Land Act 1967
Electricity Act 1994
Petroleum and Gas (Production and Safety) Act 2004
State Development and Public Works Organisation Act 1971
Transport Planning and Coordination Act 1994.