Native Title Act 1993

This section defines past act.

Subject to subsection (10), if:

either:

at any time before 1 July 1993 when native title existed in relation to particular land or waters, an act consisting of the making, amendment or repeal of legislation took place; or

at any time before 1 January 1994 when native title existed in relation to particular land or waters, any other act took place; and

apart from this Act, the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist;

Subject to subsection (10), an act that takes place on or after 1 January 1994 is a past act if:

it would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

it takes place:

in exercise of a legally enforceable right created by the making, amendment or repeal of legislation before 1 July 1993 or by any other act done before 1 January 1994; or

in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith before 1 July 1993, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made; and

the act is not the making, amendment or repeal of legislation.

Subject to subsections (6) and (10), an act (the later act) that takes place on or after 1 January 1994 is a past act if:

the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

an act (the earlier act) that is a past act because of any subsection of this section (including because of another application of this subsection) took place before the later act; and

the earlier act created interests in a person and the later act creates interests in:

the same person; or

another person who has acquired the interests of the first person (by assignment, succession or otherwise);

the interests created by the later act take effect before or immediately after the interests created by the earlier act cease to have effect; and

the interests created by the later act permit activities of a similar kind to those permitted by the earlier act.

The following are examples for the purposes of paragraph (4)(e):

the grant of a lease that permits mining only for a particular mineral followed by the grant of a lease that permits similar mining for another mineral is an example of a case where interests created by an earlier act permit activities that are of a similar kind to those permitted by a later act;

the grant of a lease that permits only grazing followed by the grant of a lease that permits mining is an example of a case where interests created by an earlier act permit activities that are not of a similar kind to those permitted by a later act.

Subsection (4) does not apply if:

the earlier act was the creation of a non‑proprietary interest in relation to land or waters and the later act is the creation of a proprietary interest in land or waters; or

the earlier act was the creation of a proprietary interest in land or waters and the later act is the creation of a larger proprietary interest in land or waters; or

if the earlier act contains a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders—the later act does not contain the same reservation or condition; or

the earlier act or the later act is the making, amendment or repeal of legislation.

For the purposes of paragraph (6)(a), the issue of a licence followed by the grant of a lease is an example of an earlier act that is the creation of a non‑proprietary interest in relation to land and a later act that is the creation of a proprietary interest in land.

For the purposes of paragraph (6)(b), the grant of a lease followed by the grant of a freehold estate is an example of an earlier act that is the creation of a proprietary interest in land and a later act that is the creation of a larger proprietary interest in land.

Subject to subsection (10), an act (the later act) that takes place on or after 1 January 1994 is a past act if:

the later act would be a past act under subsection (2) if that subsection were not limited in its application to acts taking place before a particular day; and

an act (the earlier act) that is a past act because of any subsection of this section took place before the later act; and

the earlier act contained or conferred a reservation, condition, permission or authority under which the whole or part of the land or waters to which the earlier act related was to be used at a later time for a particular purpose (for example, a reservation for forestry purposes); and

the later act is done in good faith under or in accordance with the reservation, condition, permission or authority (for example, the issue in good faith of a licence to take timber under a reservation for forestry purposes); and

the later act is not the making, amendment or repeal of legislation.

An act is not a past act if it is:

the Queensland Coast Islands Declaratory Act 1985 of Queensland; or

any other act declared by the regulations to be an excluded act for the purposes of this paragraph.