Glossary

PARTY

a person or organisation who either:

  • enters into an agreement, such as an Indigenous land use agreement, with another person or organisation
  • is a participant in a legal action or proceeding such as an application for a determination of native title?

PAST ACT

generally speaking, a ‘past act’ is a legislative act done before 1 July 1993 or any other act done before 1 January 1994, which is invalid to any extent because of the existence of native title (s 228 NTA).

PEAK BODY

organisations which represent people with common interests in relation to native title e.g. a farmers’ federation, fishing industry councils, native title representative bodies and local government associations.

PRELIMINARY CONFERENCE

 

a meeting of the parties to a future act proceeding, convened by the National Native Title Tribunal member appointed to an inquiry, at which directions may be made and information sought from the parties about issues relevant to the inquiry. A preliminary conference may, with leave, be conducted by telephone or other means of communication.

 

PRESCRIBED BODY CORPORATE (PBC)

prescribed body corporate, a body nominated by native title holders which will represent them and manage their native title rights and interests once a determination that native title exists has been made. 

PREVIOUS EXCLUSIVE POSSESSION ACT (PEPA)

broadly, these include valid or validated:

  • grants of freehold
  • ‘scheduled interests’ (see Schedule 1 NTA)
  • exclusive leases
  • some vestings under state or territory legislation
  • the construction or establishment of public works, which were done before 24 December 1996 (s 23B NTA).

PEPAs wholly extinguish native title (s 23C NTA).

PREVIOUS NON-EXCLUSIVE POSSESSION ACTS (PNEPA)

previous non-exclusive possession acts are valid or validated grants of non-exclusive agricultural or pastoral leases that took place:

  • before 24 December 1996
  • after 23 December 1996 (the date of the Wik decision), and would be PNEPA except that they were not done on or before 23 December 1996 but were done:
    • under a legally enforceable right, offer or arrangement made on or before 23 December 1996
    • in good faith as the result of an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996 of which there is reasonably contemporary written evidence (ss 23F (2) and (3) NTA).

If the effect of such a lease on native title rights and interests at common law would be to extinguish those rights and interests s 23G provides that under the Native Title Act the effect is the same. If that is not the effect at common law, the lease will merely suspend the native title rights and interests for as long as it is in force. (If the grant of the lease is also a category A past act then native title is fully extinguished.)

PRIMARY PRODUCTIVE ACTIVITIES

Includes activities undertaken by an individual, partnership, trust or company operating a primary production business in the areas of plant or animal cultivation, fishing or pearling, and tree framing or felling.

PRIOR EXTINGUISHING TENURE GRANT

There are three categories of things that, can have caused the Extinguishment of native title over particular parcels. The first is the dedication of a road in certain circumstances.  The second is the doing of a Public Work in certain circumstances.  The third is the grant of certain types of land tenure. The latter is referred to in these procedures as a Prior Extinguishing Tenure Grant.

More information about the type of grants they include is contained in the Prior Extinguishing Tenure Grant Checklist

PROCEDURAL RIGHT

the right to be notified, to object, be consulted, to comment or the right to negotiate as part of the procedures to be followed under the Native Title Act, when certain future acts are proposed (s 253 NTA).

PROPOSED FUTURE ACT

See FUTURE ACT. The Proposed Future Act describes any project of activity that affects Native Title, whether that be a physical act or a non-physical act such as the issuing of a lease, permit or authority. 

PROVISION 24KA

Provision 24KA validates the Proposed Future Act if it permits or requires the construction, operation, use, maintenance or repair of one of the following public infrastructure facilities?
 

  • A road, railway, bridge or other transport facility (other than an airport or port)
  • A navigation market or other navigational facility
  • An electricity transmission or distribution facility
  • Lighting of streets or other public places
  • A gas transmission or distribution facility
  • A well, or a bore, for obtaining water
  • A pipeline or other water supply or reticulation facility
  • A drainage facility, or a levee or other device for management of water flows
  • An irrigation channel or other irrigation facility
  • A sewerage facility, other than a treatment facility
  • A cable antenna, tower or other communication facility
  • Anything else that is similar to any of the above.

PUBLIC WORK

You need to know the precise meaning of Public Work in order to assess whether there has been Extinguishment of native title for the Future Act Area. The definition in the Native Title Act 1993 is as follows: “public work means:

  1. any of the following that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any of its capacities:
    1. a building, or other structure (including a memorial), that is a fixture; or
    2. a road, railway or bridge; or
      (ilia) where the expression is used in or for the purposes of Division 2 or 2A of Part 2—a stock-route; or
    3. a well, or bore, for obtaining water; or
    4. any major earthworks; or
  2. a building that is constructed with the authority of the Crown, other than on a lease.

Note: In addition, section 251D deals with land or waters relating to public works”.

The Resources within the Extinguishment question helps you identify Extinguishment by a Public Work.  In it, you will see reference to a “Section 251D Area”.  This is the area to which Extinguishment from the construction of a Public Work applies.  It includes both the footprint of the Public Work plus any adjacent area necessary or incidental to the construction, establishment or operation of the Public Work.