Traditional Owner Settlement Amendment Act 2013

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Traditional Owner Settlement Amendment Act
2013
No. 4 of 2013
TABLE OF PROVISIONS
Section
Page
PART 1—PRELIMINARY
1
2
1
Purposes
Commencement
1
3
PART 2—AMENDMENT OF THE TRADITIONAL OWNER
SETTLEMENT ACT 2010
4
Division 1—Preliminary
4
3
4
5
Principal Act
Definitions—Part 1
Relationship with indigenous land use agreements
10
Relationship with indigenous land use agreements
Division 2—Land Provisions
6
7
8
9
5
Effect of granting of estate in land
New section 17A inserted
17A
Native title rights not affected
Grant of aboriginal title
Transfer of rights to the State
Division 3—Land Use Activities
10
11
12
13
14
15
16
17
18
4
4
5
5
5
6
6
6
6
7
Definitions of public land authorisation and significant land
use activity
Definition of land use activity
Definition of decision maker
Power to enter into an agreement as to land use activities
Requirements for land use activity agreements
New section 31A inserted
31A
Conditions as to Aboriginal cultural heritage
Listing and classification of land use activities to which
agreement applies
Specification of activities as routine activities
Section 34 substituted
34
Ministerial direction as to advisory activities
i
7
7
9
11
12
12
12
13
13
13
13
Section
19
20
Page
New section 40A inserted
40A
Conditions as to community benefits
Requirements as to agreement as to carrying out of land use
activity
Division 4—Funding Agreements
21
Power to enter into funding agreement
Definitions—Part 6
Power to enter into natural resource agreements
Evidence of membership
Natural resource flora and fauna authorisation
Natural resource hunting authorisation
Natural resource forest authorisation
Natural resource water authorisation
Natural resource camping authorisation
PART 3—AMENDMENT OF THE PLANNING AND
ENVIRONMENT ACT 1987
30
Definitions—Planning and Environment Act 1987
PART 4—CONSEQUENTIAL AMENDMENTS
31
32
33
34
35
Climate Change Act 2010
Flora and Fauna Guarantee Act 1988
Forests Act 1958
Water Act 1989
Wildlife Act 1975
PART 5—REPEAL OF AMENDING ACT
36
15
15
Division 5—Natural Resource Agreements
22
23
24
25
26
27
28
29
14
14
Repeal of amending Act
═══════════════
ENDNOTES
15
15
15
15
16
16
17
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17
19
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ii
Victoria
Traditional Owner Settlement
Amendment Act 2013†
No. 4 of 2013
[Assented to 19 February 2013]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
The main purposes of this Act are—
(a) to amend the Traditional Owner
Settlement Act 2010 to—
(i) clarify the definition of traditional
owner group and the relationship
between certain agreements entered
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Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013
s. 1
Part 1—Preliminary
into in relation to a traditional owner
group;
(ii) enable land use activity agreements to
specify conditions as to prospecting,
community benefits and Aboriginal
cultural heritage;
(iii) provide that a land use activity
agreement cannot specify a land use
activity as a negotiation or agreement
activity if the activity is to take place in
an alpine resort;
(iv) include a wider range of permits,
licences and agreements, including
carbon sequestration agreements, in the
definition of land use activities;
(v) allow natural resource agreements to
authorise some commercial uses of
natural resources by traditional owner
groups;
(vi) provide for Orders authorising the
commercial use of flora and forest
produce under a natural resource
agreement;
(vii) provide for the Minister to make
directions regarding consultation with
traditional owner group entities;
(b) to make consequential changes to the
Climate Change Act 2010, the Flora and
Fauna Guarantee Act 1988, the Forests
Act 1958, the Water Act 1989 and the
Wildlife Act 1975.
2
Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013
Part 1—Preliminary
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 30 April 2013, it comes into
operation on that day.
__________________
3
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Traditional Owner Settlement Amendment Act 2013
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s. 3
Part 2—Amendment of the Traditional Owner Settlement Act 2010
PART 2—AMENDMENT OF THE TRADITIONAL OWNER
SETTLEMENT ACT 2010
Division 1—Preliminary
3 Principal Act
See:
Act No.
62/2010
and
amending
Act Nos
10/2010,
62/2010 and
29/2011.
LawToday:
www.
legislation.
vic.gov.au
In this Part, the Traditional Owner Settlement
Act 2010 is called the Principal Act.
4 Definitions—Part 1
(1) In section 3 of the Principal Act, insert the
following definition—
"Aboriginal person has the same meaning as in
the Aboriginal Heritage Act 2006;".
(2) In section 3 of the Principal Act, for paragraph (a)
of the definition of traditional owner group,
substitute—
"(a) a group of Aboriginal persons who may
authorise (within the meaning in
section 251A of the Native Title Act) the
making of an indigenous land use agreement
with the Minister, on behalf of the State—
(i) for the purposes of the settlement of
any application of a kind listed in the
Table to section 61 of the Native Title
Act or in which the group agrees not to
make an application of that kind; and
(ii) that is capable of being registered under
section 24CK or 24CL of the Native
Title Act; or".
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Part 2—Amendment of the Traditional Owner Settlement Act 2010
5 Relationship with indigenous land use agreements
For section 10 of the Principal Act, substitute—
"10 Relationship with indigenous land use
agreements
A recognition and settlement agreement may
form a settlement package alone or together
with any of the following entered into in
relation to the same traditional owner
group—
(a) an indigenous land use agreement—
(i) for the purposes of the settlement
of any application of a kind listed
in the Table to section 61 of the
Native Title Act or in which the
traditional owner group agrees not
to make an application of that
kind; and
(ii) that is capable of being registered
under section 24BI, 24CK or
24CL of the Native Title Act;
(b) a traditional owner land management
agreement.".
Division 2—Land Provisions
6 Effect of granting of estate in land
In section 17 of the Principal Act, for "On the
grant" substitute "Subject to section 17A, on the
grant".
5
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s. 7
Part 2—Amendment of the Traditional Owner Settlement Act 2010
7 New section 17A inserted
After section 17 of the Principal Act, insert—
"17A Native title rights not affected
A grant of an estate in fee simple in land
under section 14 does not extinguish native
title rights to the extent that they exist in
relation to that land, whether the grant was
made before, on or after the commencement
of section 7 of the Traditional Owner
Settlement Amendment Act 2013.".
8 Grant of aboriginal title
(1) In section 19(3) of the Principal Act, for "On the
grant" substitute "Subject to subsection (3A), on
the grant".
(2) After section 19(3) of the Principal Act, insert—
"(3A) A grant of an estate in fee simple in land
under subsection (1) does not extinguish
native title rights to the extent that they exist
in relation to that land, whether the grant was
made before, on or after the commencement
of section 8 of the Traditional Owner
Settlement Amendment Act 2013.".
9 Transfer of rights to the State
After section 20(3) of the Principal Act, insert—
"(4) For the avoidance of doubt, nothing in
subsection (1) prevents the Secretary
entering into a Carbon Sequestration
Agreement under section 45 of the Climate
Change Act 2010 in relation to land that is
subject to the grant of an estate in fee simple
under section 19.".
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Part 2—Amendment of the Traditional Owner Settlement Act 2010
Division 3—Land Use Activities
10 Definitions of public land authorisation and
significant land use activity
(1) In section 27(1) of the Principal Act, after
paragraph (e) of the definition of public land
authorisation, insert—
"(f) consent for the use or development of coastal
Crown land under section 40 of the Coastal
Management Act 1995;
(g) a lease under section 3 of the Land (Surf
Life Saving Association) Act 1967;
(h) a licence under Division 2 of Part 5 of the
Water Act 1989 to construct any works on a
waterway or a bore;
(i) a Carbon Sequestration Agreement under
section 45 of the Climate Change Act
2010;".
(2) In section 27(1) of the Principal Act, after
paragraph (a) of the definition of significant land
use activity, insert—
"(ab) the granting of a public land authorisation
that is a Carbon Sequestration Agreement
under section 45 of the Climate Change Act
2010;".
11 Definition of land use activity
(1) In the definition of land use activity in section 28
of the Principal Act, after paragraph (k), insert—
"(ka) the issuing of an access licence under section
38 of the Fisheries Act 1995 in respect of
the land, but does not include the transfer or
renewal of an access licence under section 56
or 57 of that Act;
7
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Traditional Owner Settlement Amendment Act 2013
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Part 2—Amendment of the Traditional Owner Settlement Act 2010
(kb) the issuing of an aquaculture licence under
section 43 of the Fisheries Act 1995 in
respect of the land, but does not include the
transfer or renewal of an aquaculture licence
under section 56 or 57 of that Act;
(kc) the issuing of a general permit under section
49 of the Fisheries Act 1995 in respect of
the land;".
(2) In the definition of land use activity in section 28
of the Principal Act, after paragraph (l), insert—
"(la) the classification of a State Wildlife Reserve
under section 15(2) of the Wildlife Act
1975;".
(3) In the definition of land use activity in section 28
of the Principal Act, in paragraph (n), for
"Wildlife Act 1975." substitute "Wildlife Act
1975;".
(4) In the definition of land use activity in section 28
of the Principal Act, after paragraph (n), insert—
"(o) the preparation of a management plan under
section 30 of the Coastal Management Act
1995;
(p) the preparation of a draft management plan
under section 31 of the Water Act 1989;
(q) the preparation of a working plan under
section 22 of the Forests Act 1958;
(r) the dedication of the land as a reserved forest
under section 45 of the Forests Act 1958;
(s) the excision of the land from a reserved
forest under section 49 of the Forests Act
1958;
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Part 2—Amendment of the Traditional Owner Settlement Act 2010
(t) the setting aside and declaration of the land
under section 50(1) of the Forests Act 1958
or the revocation or variation of a declaration
under that section;
(u) the proclamation of the land to be a protected
forest under section 58 of the Forests Act
1958 or the alteration or revocation of a
proclamation under that section.".
12 Definition of decision maker
(1) In the definition of decision maker in section 29
of the Principal Act, for paragraph (a)
substitute—
"(a) in relation to the granting of a public land
authorisation over the land—
(i) if the authorisation is a Carbon
Sequestration Agreement under
section 45 of the Climate Change Act
2010, the Secretary within the meaning
of that section; or
(ii) if the authorisation is a licence under
Division 2 of Part 5 of the Water Act
1989 to construct any works on a
waterway or bore, the Minister
responsible for administering section 67
of that Act; or
(iii) in any other case, the person or body
authorised by the Act under which the
land is managed, or regulations made
under that Act, to grant the
authorisation;".
9
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Part 2—Amendment of the Traditional Owner Settlement Act 2010
(2) In the definition of decision maker in section 29
of the Principal Act, after paragraph (g), insert—
"(ga) in relation to the issuing of an access licence
under section 38 of the Fisheries Act 1995,
the Secretary, within the meaning of that
section;
(gb) in relation to the issuing of an aquaculture
licence under section 43 of the Fisheries Act
1995, the Secretary, within the meaning of
that section;
(gc) in relation to the issuing of a general permit
under section 49 of the Fisheries Act 1995,
the Secretary, within the meaning of that
section;".
(3) In the definition of decision maker in section 29
of the Principal Act, after paragraph (i), insert—
"(ia) in relation to the classification of a State
Wildlife Reserve under section 15 of the
Wildlife Act 1975, the Minister
administering that section;".
(4) In the definition of decision maker in section 29
of the Principal Act, in paragraph (j) for "the
meaning of that section." substitute "the meaning
of that section;".
(5) In the definition of decision maker in section 29
of the Principal Act, after paragraph (j), insert—
"(k) in relation to the preparation of a
management plan under section 30 of the
Coastal Management Act 1995, the
Secretary or committee of management
responsible for the preparation of the plan;
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Part 2—Amendment of the Traditional Owner Settlement Act 2010
(l) in relation to the preparation of a draft
management plan under section 31 of the
Water Act 1989, the Minister or
consultative committee responsible for the
preparation of the plan;
(m) in relation to the preparation of a working
plan under section 22 of the Forests Act
1958, the Secretary, within the meaning of
that section;
(n) in relation to a dedication under section 45 of
the Forests Act 1958, the Minister
administering that section;
(o) in relation to the excision of land from a
reserved forest under section 49 of the
Forests Act 1958, the Minister
administering that section;
(p) in relation to a setting aside and declaration
of land under section 50(1) of the Forests
Act 1958 or the revocation or variation of a
declaration under that section, the Minister
administering that section;
(q) in relation to a proclamation that land is
protected forest under section 58 of the
Forests Act 1958 or the alteration or
variation of a proclamation under that
section, the Minister administering that
section.".
13 Power to enter into an agreement as to land use
activities
For section 30(4)(a) of the Principal Act,
substitute—
"(a) that the agreement forms part of a settlement
package that includes an indigenous land use
agreement capable of being registered under
section 24BI, 24CK or 24CL of the Native
Title Act; or".
11
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Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013
s. 14
Part 2—Amendment of the Traditional Owner Settlement Act 2010
14 Requirements for land use activity agreements
(1) In section 31(3) of the Principal Act, for "earth
resource of infrastructure" substitute "earth
resource or infrastructure".
(2) After section 31(3) of the Principal Act, insert—
"(3A) A land use activity agreement may, in
relation to earth resource or infrastructure
authorisations that are prospecting licences
under the Mineral Resources (Sustainable
Development) Act 1990, specify conditions
as to activities allowed under a prospecting
licence that may be accepted by persons
applying for such authorisations.".
(3) In section 31(4) of the Principal Act—
(a) for "subsection (3)" substitute "subsection
(3) or (3A)";
(b) for "authority" substitute "authorisation".
15 New section 31A inserted
After section 31 of the Principal Act, insert—
"31A Conditions as to Aboriginal cultural
heritage
(1) Subject to subsection (2), a land use activity
agreement may, in relation to agreement
activities and negotiation activities, specify
conditions as to Aboriginal cultural heritage
that must be accepted by the parties to the
agreement and any person seeking to carry
out those activities on the agreement land.
(2) A land use activity agreement must not
contain any condition that duplicates or is
inconsistent with any provision of the
Aboriginal Heritage Act 2006.
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Part 2—Amendment of the Traditional Owner Settlement Act 2010
(3) In this section, Aboriginal cultural heritage
has the same meaning as in the Aboriginal
Heritage Act 2006.".
16 Listing and classification of land use activities to
which agreement applies
After section 32(3) of the Principal Act, insert—
"(3A) A land use activity agreement must not
specify a land use activity as a negotiation
activity or an agreement activity if that
activity is to be carried out on any land that
is within the boundaries of an alpine resort,
within the meaning of the Alpine Resorts
Act 1983.".
17 Specification of activities as routine activities
In section 33(2) of the Principal Act—
(a) after "exploration" insert "or an activity
allowed under a prospecting licence";
(b) after "section 31(3)" insert "or (3A)".
18 Section 34 substituted
For section 34 of the Principal Act, substitute—
"34 Ministerial direction as to advisory
activities
(1) If a land use activity agreement specifies a
land use activity as an advisory activity, the
Minister must give written directions as to
the actions that must be taken by the decision
maker for that activity to—
(a) notify the traditional owner group
entity of any proposal to carry out the
activity on agreement land; and
(b) consult with the traditional owner
group entity on the proposal.
13
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Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013
s. 19
Part 2—Amendment of the Traditional Owner Settlement Act 2010
(2) Any direction given under subsection (1)
must set out the land use activities to which
it applies.
(3) The Minister may, after consulting the
traditional owner group entity, vary or
revoke a direction given under subsection
(1).
(4) If the Minister revokes a direction given
under subsection (1), the Minister must, as
soon as possible after doing so, give further
written directions as to the matters covered
by the revoked direction.".
19 New section 40A inserted
After section 40 of the Principal Act, insert—
"40A Conditions as to community benefits
A land use activity agreement may specify
the amount and method of payment of any
community benefits payable by the State in
relation to—
(a) any land use activity that the agreement
specifies is a negotiation activity or an
agreement activity and for which the
responsible person is the State;
(b) any land use activity that is a public
land authorisation and that the
agreement specifies is a negotiation
activity or an agreement activity.".
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Part 2—Amendment of the Traditional Owner Settlement Act 2010
20 Requirements as to agreement as to carrying out of
land use activity
In section 51(2) of the Principal Act, for "provide
a copy of the agreement to the decision maker"
substitute "give the decision maker a notice
signed by the traditional owner group entity and
the responsible person to the effect that an
agreement that complies with subsection (1) has
been reached".
Division 4—Funding Agreements
21 Power to enter into funding agreement
In section 78(2) of the Principal Act, for "a trust"
substitute "a charitable trust".
Division 5—Natural Resource Agreements
22 Definitions—Part 6
In section 79 of the Principal Act, in the definition
of traditional purposes, omit "entity" (wherever
occurring).
23 Power to enter into natural resource agreements
(1) In section 80(1) of the Principal Act—
(a) in paragraphs (a) and (b), omit "entity"
(wherever occurring);
(b) in paragraph (b), after "traditional purposes"
insert "or commercial purposes".
(2) After section 80(2) of the Principal Act, insert—
"(3) A natural resource agreement must not
provide for use of or access to the natural
resources of land for commercial purposes
under subsection (1)(b) if that commercial
purpose is inconsistent with the purpose for
which the land is reserved under any Act.".
15
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Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013
s. 24
Part 2—Amendment of the Traditional Owner Settlement Act 2010
24 Evidence of membership
(1) In section 81(1) of the Principal Act, omit
"entity".
(2) In section 81(2) of the Principal Act, in paragraph
(e) of the definition of authorised officer, for
"1989." substitute "1989;".
(3) In section 81(2) of the Principal Act, after
paragraph (e) of the definition of authorised
officer, insert—
"(f) as in the National Parks Act 1975, for a
person performing duties under that Act;
(g) as in the Crown Land (Reserves) Act 1978,
for a person performing duties under that
Act.".
25 Natural resource flora and fauna authorisation
For section 82(1) of the Principal Act,
substitute—
"(1) The Governor in Council may, by Order and
on the recommendation of the Minister
administering the Flora and Fauna
Guarantee Act 1988, authorise the members
of a traditional owner group in relation to
which a natural resource agreement has been
entered into to do any of the following—
(a) take (except for the purposes of
controlling), keep, move or process
protected flora (within the meaning of
the Flora and Fauna Guarantee Act
1988) for traditional purposes;
(b) take (except for the purposes of
controlling), trade in, keep, move or
process protected flora (within the
meaning of the Flora and Fauna
Guarantee Act 1988) for a commercial
16
Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013
Part 2—Amendment of the Traditional Owner Settlement Act 2010
purpose provided for in the natural
resource agreement;
(c) take or keep fish which are members of
a listed taxon or community of fauna
(within the meaning of the Flora and
Fauna Guarantee Act 1988) for
traditional purposes—
in so far as is authorised by the Order.".
26 Natural resource hunting authorisation
In section 83(1) of the Principal Act, for "entity
that has a natural resource agreement" substitute
"in relation to which a natural resource agreement
has been entered into".
27 Natural resource forest authorisation
In section 84(1) of the Principal Act—
(a) for "entity that has a natural resource
agreement" substitute "in relation to which a
natural resource agreement has been entered
into";
(b) after "traditional purposes" insert "or a
commercial purpose provided for in the
natural resource agreement".
28 Natural resource water authorisation
In section 85(1) of the Principal Act, for "entity
that has a natural resource agreement" substitute
"in relation to which a natural resource agreement
has been entered into".
29 Natural resource camping authorisation
(1) In section 86(1) of the Principal Act, for "entity
that has a natural resource agreement" substitute
"in relation to which a natural resource agreement
has been entered into".
17
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Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013
s. 29
Part 2—Amendment of the Traditional Owner Settlement Act 2010
(2) In section 86(7) and (9) of the Principal Act, omit
"entity".
__________________
18
Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013
Part 3—Amendment of the Planning and Environment Act 1987
s. 30
PART 3—AMENDMENT OF THE PLANNING AND
ENVIRONMENT ACT 1987
30 Definitions—Planning and Environment Act 1987
In section 3(1) of the Planning and Environment
Act 1987, for paragraphs (c) and (d) of the
definition of owner, substitute—
"(c) in relation to Crown land reserved under the
Crown Land (Reserves) Act 1978 and
managed or controlled by a committee of
management, means—
(i) in Part 3, if the land is agreement land
within the meaning of the Traditional
Owner Settlement Act 2010, each of
the following—
(A) the traditional owner group entity
within the meaning of
Traditional Owner Settlement
Act 2010 for the land;
(B) the Minister administering the
Crown Land (Reserves) Act
1978;
(ii) in any other case, the Minister
administering the Crown Land
(Reserves) Act 1978; and
(d) in relation to any other Crown land, means—
(i) in Part 3, if the land is agreement land
within the meaning of the Traditional
Owner Settlement Act 2010, each of
the following—
(A) the traditional owner group entity
within the meaning of
Traditional Owner Settlement
Act 2010 for the land;
19
See:
Act No.
45/1987.
Reprint No. 10
as at
27 April 2012
and
amending
Act Nos
38/2012 and
43/2012.
LawToday:
www.
legislation.
vic.gov.au
Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013
s. 30
Part 3—Amendment of the Planning and Environment Act 1987
(B) the Minister or public authority
that manages or controls the land;
(ii) in any other case, the Minister or public
authority that manages or controls the
land;".
__________________
20
Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013
Part 4—Consequential Amendments
PART 4—CONSEQUENTIAL AMENDMENTS
31 Climate Change Act 2010
At the end of section 45 of the Climate Change
Act 2010, insert—
"Note
The entry into a Carbon Sequestration Agreement under this
section may be a land use activity under the Traditional
Owner Settlement Act 2010 if it relates to public land to
which a land use activity agreement under that Act applies.".
32 Flora and Fauna Guarantee Act 1988
(1) In section 48A of the Flora and Fauna
Guarantee Act 1988, omit "entity".
(2) In section 52A of the Flora and Fauna
Guarantee Act 1988, omit "entity".
33 Forests Act 1958
(1) In section 3(1) of the Forests Act 1958, in the
definition of traditional owner group entity, omit
"entity".
(2) In section 57Q(5) of the Forests Act 1958, omit
"entity".
(3) In section 57ZF(2) of the Forests Act 1958, omit
"entity".
(4) In section 59(1B) of the Forests Act 1958, omit
"entity".
(5) In section 96C of the Forests Act 1958, omit
"entity".
34 Water Act 1989
(1) In section 3(1) of the Water Act 1989, insert the
following definition—
"traditional owner group has the same meaning
as in the Traditional Owner Settlement
Act 2010;".
21
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Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013
s. 35
Part 4—Consequential Amendments
(2) In section 8A(1) of the Water Act 1989, for "any
member of the entity" substitute ", any member
of the traditional owner group that appointed the
entity to represent the group in relation to that
area".
(3) In section 8A(2) of the Water Act 1989, omit
"entity".
35 Wildlife Act 1975
(1) In section 3(1) of the Wildlife Act 1975, in the
definition of traditional owner group entity, omit
"entity".
(2) In section 47B of the Wildlife Act 1975, omit
"entity".
__________________
22
Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013
Part 5—Repeal of Amending Act
PART 5—REPEAL OF AMENDING ACT
36 Repeal of amending Act
This Act is repealed on 30 April 2014.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
═══════════════
23
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Traditional Owner Settlement Amendment Act 2013
No. 4 of 2013
Endnotes
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly: 12 September 2012
Legislative Council: 13 December 2012
The long title for the Bill for this Act was "A Bill for an Act to amend the
Traditional Owner Settlement Act 2010 and the Planning and
Environment Act 1987, to make consequential amendments to other
Acts and for other purposes."
24
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