Native Title Act 1993

This section applies if:

a claimant application is made in relation to an area; and

when the application is made:

a freehold estate exists, or a lease is in force, over the area or the area is vested in any person, if the grant of the freehold estate or lease or the vesting took place under legislation that makes provision for the grant or vesting of such things only to, in or for the benefit of, Aboriginal peoples or Torres Strait Islanders; or

the area is held expressly for the benefit of, or is held on trust, or reserved, expressly for the benefit of, Aboriginal peoples or Torres Strait Islanders; and

when the application is made, one or more members of the native title claim group occupy the area.

For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by any of the following acts must be disregarded:

the grant or vesting mentioned in subparagraph (1)(b)(i) or the doing of the thing that resulted in the holding or reservation mentioned in subparagraph (1)(b)(ii);

the creation of any other prior interest in relation to the area, other than, in the case of an area held as mentioned in subparagraph (1)(b)(ii), the grant of a freehold estate for the provision of services (such as health and welfare services).

The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

the determination does not affect:

the validity of the grant or vesting or of the creation of the trust or reservation; or

the validity of the creation of any other prior interest in relation to the area; or

any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and

the non‑extinguishment principle applies to the grant or vesting or the creation of the trust or reservation or any other prior interest.

For the purposes of this section, a reference to the creation of an interest in relation to an area does not include a reference to the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity.