104ASaving of native title rights
and interests with respect to national parks and other reservations,
dedications or declarations
(1)
This section applies to the following
acts:
(a)
a reservation, dedication or vesting of, or
declaration over, land or waters by the operation of the Brigalow and Nandewar Community Conservation Area Act
2005, the Western Sydney
Parklands Act 2006, the Sporting Venues
Authorities Act 2008, the Forestry
Revocation and National Park Reservation Act 1996, the
Forestry and National Park Estate Act
1998, the National Park
Estate (Southern Region Reservations) Act 2000, the
National Park Estate (Reservations) Act
2002, the National Park
Estate (Reservations) Act 2003, the National Park Estate (Lower Hunter Region Reservations) Act
2006, the National Park
Estate (Riverina Red Gum Reservations) Act 2010, the
National Park Estate (South-Western Cypress Reservations)
Act 2010, the National Park
Estate (Reservations) Act 2005, the National Parks and Wildlife (Adjustment of Areas) Act
2006 or Schedule 2 to the National Parks
and Wildlife Act 1974,
(b)
a proclamation or notice under the National Parks and Wildlife Act 1974
that reserves or dedicates land or waters with effect on or after 1 January
1994 (including a provision of an Act that is taken to operate as such a
proclamation or notice),
(c)
a notification under the Wilderness Act 1987 or the National Parks and Wildlife Act 1974
that declares an area of land or waters to be a wilderness area with effect on
or after 1 January 1994 (including a provision of an Act that is taken to
operate as such a notification),
(c1)
a notice under section 188C of the National Parks and Wildlife Act 1974
that adjusts the boundary of land reserved under that Act, or acquired under
Part 11 of that Act, that adjoins a public road,
(c2)
an order under section 188D (5) of the National Parks and Wildlife Act 1974
that operates to reserve land under that Act or vest land for the purposes of
Part 11 of that Act,
(d)
an order under section 24 of the Sporting Venues Authorities Act 2008
that vests land in a sporting venues authority,
(e)
a proclamation under the Marine
Parks Act 1997 that declares an area of land or waters to
be a marine park or part of a marine park (including a provision of an Act
that is taken to operate as such a proclamation),
(f)
a notice under the Fisheries Management Act 1994 that
declares an area to be an aquatic reserve or part of an aquatic
reserve,
(g)
an order under section 19 of the State Property Authority Act 2006 that
vests property in the State Property Authority,
(h)
an order under section 34 of the Western Sydney Parklands Act 2006 that
vests land in the Western Sydney Parklands Trust.
(2)
An act to which this section applies does not
operate to extinguish, and is taken never to have operated to extinguish, any
native title rights and interests existing in relation to land or waters
immediately before the act.
(3)
The relevant provisions of the National Parks and Wildlife Act 1974,
the Wilderness Act 1987, the Marine Parks Act 1997, the Crown Lands Act 1989, the Fisheries Management Act 1994, the
State Property Authority Act 2006 and
the regulations or other instruments made under those Acts (and any related
Act or law) do not apply, and cannot be applied, so as to affect those native
title rights and interests. The relevant provisions are those provisions that
apply because the land or waters concerned are reserved, dedicated, declared
or vested under any such Act.
Note—
An act “affects” native title rights
and interests if it extinguishes those rights and interests or if it is wholly
or partially inconsistent with their continued existence, enjoyment or
exercise—see sec 227 NTA and sec 5 of this Act.
(4)
To the extent (if any) that an act to which this
section applies was invalid because of those native title rights and
interests, an act of the same kind is taken to have effect on the commencement
of this section, subject to subsections (2) and (3).
(5)
However, this section does not affect:
(a)
any extinguishment of those native title rights
and interests, or
(b)
any validation of an act, or
(c)
any application of the relevant provisions
referred to in subsection (3), or
(d)
any other effect on those native title rights and
interests,
by the operation of, or by anything done under, the
Commonwealth Native Title Act or the other provisions of this
Act.
s 104A: Ins 1998 No
163, Sch 11. Am 2000 No 86, Sch 8 [1] [2]; 2000 No 103, Sch 8.2 [1] [2]; 2000
No 113, Sch 2 [1] [2]; 2002 No 137, Sch 9.2 [1]–[3]; 2003 No 24, sec 13;
2005 No 56, Sch 12.5; 2005 No 84, sec 15; 2006 No 15, sec 6; 2006 No 40, Sch
3.2 [1] [2]; 2006 No 90, sec 14; 2006 No 92, Sch 5.3 [1] [2]; 2008 No 65, Sch
6.2 [1] [2]; 2010 No 22, Sch 10.3; 2010 No 38, Sch 3.11; 2010 No 77, Sch 2;
2010 No 112, Sch 9.3.