Consent to certain uses
18 Consent to certain uses
In this section and section 18A —
approved determination of native title has the meaning given in the Native Title Act section 253;
claim area, in relation to a registered native title claim, means the area registered on the Register of Native Title Claims under the Native Title Act section 186(1)(e) as covered by the registered native title claim;
determination area, in relation to an approved determination of native title, means the area registered on the National Native Title Register under the Native Title Act section 193(2)(c) as covered by the approved determination of native title;
ILUA means an indigenous land use agreement registered on the Register of Indigenous Land Use Agreements established and maintained under the Native Title Act Part 8A;
National Native Title Register has the meaning given in the Native Title Act section 253;
native title has the meaning given in the Native Title Act section 223;
Native Title Act means the Native Title Act 1993 (Commonwealth);
native title party, in relation to land, means the following —
if the land is the subject of a settlement ILUA — a regional corporation in relation to that land;
if the land is not the subject of a settlement ILUA and is within the external boundary of the determination area of an approved determination of native title (the relevant determination), regardless of whether native title in relation to the land has been extinguished or surrendered — a registered native title body corporate in relation to the relevant determination;
if the land is not the subject of a settlement ILUA and is within the external boundary of the claim area of a registered native title claim (the registered claim), regardless of whether native title in relation to the land has been extinguished or surrendered — a registered native title claimant in relation to the registered claim;
a prescribed person or a person of a prescribed class;
native title rights and interests has the meaning given in the Native Title Act section 223;
new information about an Aboriginal site, in relation to land the subject of a consent given under subsection (3)(a), means information about an Aboriginal site on the land, other than information that a person who made a decision to give, amend or confirm the consent was made aware of for the purposes of making the decision;
regional corporation means —
in relation to land the subject of a settlement ILUA referred to in paragraph (a) of the definition of settlement ILUA — a Regional Corporation, as defined in the Land Administration (South West Native Title Settlement) Act 2016 section 3, appointed in respect of the land; or
in relation to the land the subject of the settlement ILUA referred to in paragraph (b) of the definition of settlement ILUA — the Regional Entity, as defined in that ILUA; or
in relation to land the subject of a settlement ILUA referred to in paragraph (c) of the definition of settlement ILUA — a prescribed corporation that has functions in respect of the land under, or for the purposes of, the settlement ILUA;
registered native title body corporate has the meaning given in the Native Title Act section 253;
registered native title claim means a claim (within the meaning of the Native Title Act section 184) details of which are contained in the Register of Native Title Claims;
registered native title claimant has the meaning given in the Native Title Act section 253;
Register of Native Title Claims has the meaning given in the Native Title Act section 253;
settlement ILUA means —
a settlement ILUA within the meaning of the Land Administration (South West Native Title Settlement) Act 2016 section 3; or
the ILUA named the Yamatji Nation Indigenous Land Use Agreement registered on 30 July 2020; or
another prescribed ILUA under which native title rights and interests have been surrendered.
For the purposes of this section, the expression the owner of any land includes a lessee from the Crown, and the holder of any mining tenement or mining privilege, or of any right or privilege under the Petroleum, Geothermal Energy and Greenhouse Gas Storage Act 1967, in relation to the land.
A person is also included as an owner of land for the purposes of this section if —
the person —
is the holder of rights conferred under section 34 of the Dampier to Bunbury Pipeline Act 1997 in respect of the land or is the holder’s nominee approved under section 34(3) of that Act; or
has authority under section 7 of the Petroleum and Greenhouse Gas Pipelines Act 1969 to enter upon the land;
or
the person is the holder of a distribution licence under Part 2A of the Energy Coordination Act 1994 as a result of which the person has rights or powers in respect of the land; or
the person is the holder of a licence under the Water Services Act 2012 as a result of which the person has rights or powers in respect of the land.
Where the owner of any land gives to the Committee notice in writing that he requires to use the land for a purpose which, unless the Minister gives his consent under this section, would be likely to result in a breach of section 17 in respect of any Aboriginal site that might be on the land, the Committee must form an opinion as to whether there is any Aboriginal site on the land, evaluate the importance and significance of any such site, and submit the notice to the Minister together with its recommendation in writing as to whether or not the Minister should consent to the use of the land for that purpose, and, where applicable, the extent to which and the conditions upon which his consent should be given.
Where the Committee submits a notice to the Minister under subsection (2) he shall consider its recommendation and having regard to the general interest of the community shall either —
consent to the use of the land the subject of the notice, or a specified part of the land, for the purpose required, subject to such conditions, if any, as he may specify; or
wholly decline to consent to the use of the land the subject of the notice for the purpose required,
and shall forthwith inform the owner in writing of his decision.
As soon as practicable after making a decision under subsection (3) or (6A), the Minister must publish notice of the decision on a website maintained by, or on behalf of, the Department.
Where the owner of any land has given to the Committee notice pursuant to subsection (2) and the Committee has not submitted it with its recommendation to the Minister in accordance with that subsection the Minister may require the Committee to do so within a specified time, or may require the Committee to take such other action as the Minister considers necessary in order to expedite the matter, and the Committee shall comply with any such requirement.
Where the owner of any land, or a native title party in relation to land, is aggrieved by a decision of the Minister made under subsection (3) or (6A) in relation to the land, the owner or native title party may apply to the State Administrative Tribunal for a review of the decision.
A provision of a contract or other agreement (whether entered into before, on or after 23 December 2021) that would otherwise prohibit or have the effect of prohibiting a native title party in relation to land, or a person who is a member of such a native title party, from doing any of the following is of no effect —
making an application under subsection (5) in relation to the land;
commencing or being heard in proceedings before a court or tribunal in relation to a matter arising under or in relation to this section in relation to the land;
being heard or making submissions in relation to the performance of a function under this section in relation to the land.
A consent given under subsection (3)(a), whether given before, on or after 23 December 2021, is subject to whichever of the following conditions is applicable —
if the consent was given in relation to a notice under subsection (2) that was given to the Committee referred to in section 72(1) before 23 December 2021 — the condition is that an owner of the land the subject of the consent must, in accordance with the regulations (if any), notify the Minister if the owner becomes aware, on or after 1 July 2023, of any new information about an Aboriginal site on the land the subject of the consent;
if the consent was given in relation to a notice under subsection (2) that was given to the Committee referred to in section 72(1) on or after 23 December 2021 but before 1 July 2023 — the condition is that an owner of the land the subject of the consent must, in accordance with the regulations (if any), notify the Minister if the owner becomes aware, on or after 23 December 2021, of any new information about an Aboriginal site on the land the subject of the consent;
otherwise — the condition is that an owner of the land the subject of the consent must, in accordance with the regulations (if any), notify the Minister if the owner becomes aware, on or after the day on which the consent is given, of any new information about an Aboriginal site on the land the subject of the consent.
If, in relation to a consent given under subsection (3)(a), the Minister becomes aware of new information about an Aboriginal site, the Minister may, having regard to the general interest of the community, do 1 of the following —
amend the consent by amending the conditions to which it is subject, imposing new conditions or changing the specification of the land to which it relates;
revoke the consent;
revoke the consent and give a new consent;
confirm the consent.
However, if the Minister becomes aware of the new information about an Aboriginal site because of a notice given in accordance with a condition under subsection (6), the Minister must make a decision under subsection (6A).
If the Minister proposes to exercise a power under subsection (6A) in relation to a consent, the Minister may suspend the consent in whole or in part. A suspension cannot extend beyond when the exercise of the power under subsection (6A) has taken effect.
A consent given under subsection (6A)(c) —
is taken to have been given under subsection (3)(a); and
is subject to the condition in subsection (6)(c).
Where the owner of any land gives notice to the Committee under subsection (2), the Committee may, if it is satisfied that it is practicable to do so, direct the removal of any object to which this Act applies from the land to a place of safe custody.
Where consent has been given under subsection (3)(a) to use any land for a particular purpose nothing done pursuant to, and in accordance with any conditions attached to, the consent constitutes an offence against this Act.
procedural matters for the purposes of this section; and
timeframes for doing things under or for the purposes of this section, or for performing functions under this section, including by —
prescribing time limits within which a thing required or permitted to be done must be done; and
prescribing time limits within which a function must be performed; and
providing for the extension of such time limits.
Regulations under subsection (9) may be made in relation to the jurisdiction of the State Administrative Tribunal under subsection (5) and, to the extent necessary for such regulations, the State Administrative Tribunal Act 2004 section 92 is excluded.
[Section 18 inserted: No. 8 of 1980 s. 6; amended: No. 24 of 1995 s. 19; No. 58 of 1999 s. 39; No. 55 of 2004 s. 5; No. 35 of 2007 s. 89; No. 25 of 2012 s. 203; No. 27 of 2021 s. 340; No. 23 of 2023 s. 14; No. 17 of 2024 s. 433 and 434.]
This provision refers to the regulations (prescribed person
, prescribed class
, the regulations
). Made under this Act:
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