Torres Strait Islander Land Act 1991

An Act providing for the grant, and the claim and grant, of land as Torres Strait Islander land, and for other purposes

Whereas—

1Before European settlement land in what is now the State of Queensland was occupied, used and enjoyed by Torres Strait Islanders in accordance with Island custom.

2Land is of spiritual, social, historical, cultural and economic importance to Torres Strait Islanders.

3After European settlement many Torres Strait Islanders maintained their ancestors’ customary affiliation with particular areas of land.

4Some Torres Strait Islanders have a historical association with particular areas of land based on them or their ancestors having lived on or used the land or neighbouring land.

5Some Torres Strait Islanders have a requirement for land to ensure their economic or cultural viability.

6Some land has been set aside for Torres Strait Islander reserves or for the benefit of Torres Strait Islanders and deeds of grant in trust are held on behalf of certain Torres Strait Islanders.

7The Parliament is satisfied that Torres Strait Islander interests and responsibilities in relation to land have not been adequately and appropriately recognised by the law and that this has contributed to a general failure of previous policies in relation to Torres Strait Islanders.

8The Parliament is further satisfied that special measures need to be enacted for the purpose of securing adequate advancement of the interests and responsibilities of Torres Strait Islanders and to rectify the consequences of past injustices.

9It is, therefore, the intention of the Parliament to make provision, by the special measures enacted by this Act, for the adequate and appropriate recognition of the interests and responsibilities of Torres Strait Islanders in relation to land and thereby to foster the capacity for self-development, and the self-reliance and cultural integrity, of Torres Strait Islanders.

1Short title

This Act may be cited as the Torres Strait Islander Land Act 1991.

2Definitions

The dictionary in schedule 1 defines particular words used in this Act.

s 2 prev s 2 om 6 July 1995 RA s 37

pres s 2 amd 2011 No. 26 s 134 (1)

Note—s 2 contained definitions for this Act. Definitions are now located in sch 1 (Dictionary). Annotations for definitions contained in prev s 2 are located in annotations for sch 1.

3Torres Strait Islanders particularly concerned with land etc.

(1)For the purposes of this Act, a Torres Strait Islander is particularly concerned with land if the Torres Strait Islander—

(a)has a particular connection with the land under Island custom; or

(b)lives on or uses the land or neighbouring land.

(2)For the purposes of this Act, Torres Strait Islanders are particularly concerned with land if—

(a)they are members of a group that has a particular connection with the land under Island custom; or

(b)they live on or use the land or neighbouring land.

4Acts binds all persons

This Act binds all persons, including the State, and, as far as the legislative power of the Parliament permits, the Commonwealth and the other States.

s 4 sub 2011 No. 26 s 136

5Meaning of Torres Strait Islander

A Torres Strait Islander is a person who is a descendant of an indigenous inhabitant of the Torres Strait Islands.

s 5 prev s 5 ins 1993 No. 85 s 167

om 2011 No. 26 s 135

6Meaning of Island custom

Island custom, known in the Torres Strait as Ailan Kastom, is the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships.

7Meaning of Torres Strait Islander land

Torres Strait Islander land is transferred land.

s 7 amd 1993 No. 85 s 168 (amd 1994 No. 61 s 2 sch 2); 2008 No. 29 s 75; 2011 No. 26 s 137

8Meaning of transferable and transferred land

(1)Transferable land is land that is to be granted under part 4.

(2)Transferred land is land that is granted under part 4.

s 8 amd 1993 No. 85 s 168A (amd 1994 No. 61 s 2 sch 2); 2008 No. 29 s 76; 2011 No. 26 s 138

9Lands that are transferable lands

(1)The following lands are transferable lands—

(a)DOGIT land;

(b)Torres Strait Islander reserve land;

(c)available State land the Minister declares to be transferable land.

(2)However, land mentioned in subsection (1) ceases to be transferable land to the extent either of the following applies—

(a)it is taken, under the Acquisition Act, by a constructing authority;

(b)it is available land approved for a grant in fee simple by the chief executive under section 28C.

(3)Also, land mentioned in subsection (1) is not transferable land to the extent it is the subject of any of the following—

(a)a declaration in force under section 13;

(b)an offer to allocate available land under section 28T, while the offer is in force;

(c)an allocation process for available land under part 2A, division 6, until the process ends.

s 9 amd 1993 No. 85 s 168B (amd 1994 No. 61 s 2 sch 2); 2008 No. 29 s 77; 2011 No. 26 s 189 sch; 2014 No. 45 s 34; 2019 No. 17 s 86

10DOGIT land

(1)DOGIT land is land (other than a road or prescribed DOGIT land) that, at the beginning of the enactment day, was—

(a)granted in trust under the Land Act 1962 for the benefit of Torres Strait Islander inhabitants or for the purpose of a Torres Strait Islander reserve; or

(b)within the external boundaries of an area of such land and—

(i)reserved and set apart for, or dedicated to, a public purpose under the Land Act 1962; or

(ii)land that has become unallocated State land by way of resumption for a public purpose within the meaning of the Land Act 1962; or

(iii)subject to a lease granted under the Land Holding Act; or

(iv)subject to a special lease granted under the Land Act 1962; or

(v)the subject of an application under the Land Holding Act, section 5, that had been approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act, but for which a lease under that Act has not been granted.

(2)DOGIT land includes land within the external boundaries of land mentioned in subsection (1)(a) that has, since the enactment day, ceased to be a road.

(3)Also, DOGIT land includes land within the external boundaries of land mentioned in subsection (1)(a) if—

(a)the land was the subject of an application under the Land Holding Act, section 5, that was approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act after the enactment day; and

(b)a lease under that Act has not been granted for the land.

(4)DOGIT land does not include land within the external boundaries of land mentioned in subsection (1)(a) if the land has, since the enactment day, become a road.

s 10 amd 1993 No. 85 s 168C (amd 1994 No. 61 s 2 sch 2); 2010 No. 39 s 320; 2011 No. 26 s 139; 2013 No. 23 s 207

11Torres Strait Islander reserve land

(1)Torres Strait Islander reserve land is land that, at the beginning of the enactment day, is—

(a)reserved and set apart under the Land Act 1962 for a Torres Strait Islander reserve or for the benefit of Torres Strait Islander inhabitants; or

(b)within the external boundaries of an area of such land and—

(i)subject to a lease granted under the Land Holding Act; or

(ii)the subject of an application under the Land Holding Act, section 5, that had been approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act, but for which a lease under that Act has not been granted;

and includes land reserved and set apart under the Land Act 1962 for any other public purpose if the Minister declares the land to be land that was, or included land that was, at the beginning of the enactment day, being used as a Torres Strait Islander reserve or for the benefit of Torres Strait Islanders.

(2)Also, Torres Strait Islander reserve land includes land within the external boundaries of land mentioned in subsection (1)(a) if—

(a)the land was the subject of an application under the Land Holding Act, section 5, that was approved by the trustee council, or approved on appeal by the appeal tribunal, under that Act after the enactment day; and

(b)a lease under that Act has not been granted for the land.

(3)Further, Torres Strait Islander reserve land includes land within the external boundaries of land mentioned in subsection (1)(a) if the land has, since the enactment day, ceased to be a road.

(4)Torres Strait Islander reserve land does not include land within the external boundaries of land mentioned in subsection (1)(a) if the land has, since the enactment day, become a road.

s 11 amd 1993 No. 85 s 168D (amd 1994 No. 61 s 2 sch 2); 2011 No. 26 s 140; 2013 No. 23 s 208; 2019 No. 17 s 87

pt 2 div 4 hdg ins 2008 No. 29 s 78

12Definition for div 4

In this division—

relevant land means the following land, or a part of the land—

(a)DOGIT land;

(b)Torres Strait Islander reserve land, other than land declared by the Minister for section 11.

s 12 ins 2008 No. 29 s 78

amd 2019 No. 17 s 88

13Particular land may be declared to be not transferable land

(1)The Minister may, by gazette notice, make a declaration that relevant land is not transferable land if the Minister is satisfied that—

(a)housing or essential or other infrastructure is situated on the land; or

(b)the land is being used as a town site or part of a town site; or

(c)the land is being used as if it were a road; or

(d)having regard to the nature or use of the land, it is not appropriate or practicable in the circumstances for the land to be granted in fee simple under this Act.

(2)In considering whether to make a declaration under subsection (1)(d), the Minister may have regard to matters relating to the nature or use of the relevant land the Minister considers appropriate, including, for example—

(a)whether the land is likely to be used as a town site or part of a town site; and

(b)whether the land is in a condition suitable to be granted under this Act.

(3)The Minister must not make a declaration under subsection (1)(d) before—

(a)if no appeal is made to the Land Court against the decision to make the declaration—the period for making an appeal ends; or

(b)if an appeal is made to the Land Court against the decision to make the declaration—the day the appeal is finally decided.

s 13 ins 2008 No. 29 s 78

amd 2011 No. 26 s 141

14Notice of intention to make declaration

(1)If the Minister intends to make a declaration under section 13, the Minister must—

(a)give notice of the Minister’s intention to make the declaration to the trustee of the relevant land; and

(b)as soon as practicable after giving the notice under paragraph (a), publish notice of the Minister’s intention to make the declaration in a newspaper or other publication circulating generally in the area where the relevant land is situated; and

(c)consider all representations made under subsection (4).

(2)The notice must—

(a)include a description of the relevant land; and

(b)state the following—

(i)the reasons for the proposed declaration;

(ii)that a person may make written representations to the Minister about the proposed declaration;

(iii)the place where the representations may be made;

(iv)the period in which the representations must be made.

(3)The stated period must end at least 28 days after the notice is published.

(4)A person may make written representations about the proposed declaration to the Minister within the stated period.

s 14 prev s 14 amd 1993 No. 85 s 168E (amd 1994 No. 61 s 2 sch 2)

om 2011 No. 26 s 146

pres s 14 ins 2008 No. 29 s 78

amd 2011 No. 26 s 142; 2013 No. 23 s 352 sch 1 pt 1

15Minister to consider representations and give notice of decision

(1)After considering all representations made under section 14(4) about the proposed declaration, the Minister must—

(a)decide whether to make the declaration; and

(b)give notice of the decision to—

(i)each person who made the representations; and

(ii)the trustee of the relevant land, if the trustee did not make any representations.

(2)The Minister may, after considering the representations, decide to make the declaration for all or a part of the relevant land described in the notice under section 14.

(3)If the Minister decides to make the declaration, the notice must—

(a)include a description of the relevant land to be declared not transferable under this division; and

(b)state all of the following—

(i)the provision under which the declaration is to be made;

(ii)the reasons for the decision;

(iii)if the Minister is to make the declaration under section 13(1)(d)—that a person who made representations about the proposed declaration may appeal against the decision to the Land Court within 28 days after receiving the notice, and how the person may appeal.

s 15 prev s 15 amd 1991 No. 76 s 45

sub 1993 No. 85 s 168F (amd 1994 No. 61 s 2 sch 2)

amd 1995 No. 57 ss 1–2, 4, sch 1

om 2011 No. 26 s 146

pres s 15 ins 2008 No. 29 s 78

amd 2011 No. 26 s 143; 2013 No. 23 s 352 sch 1 pt 1

16Notice about declarations—trustee

As soon as practicable after a declaration that relevant land is not transferable land is made, the chief executive must give the trustee of the land notice of the declaration.

s 16 ins 2008 No. 29 s 78

amd 2013 No. 23 s 352 sch 1 pt 1

17Notice about declarations—registrar

(1)As soon as practicable after a declaration that relevant land is not transferable land is made, the chief executive must give the registrar notice of the declaration.

(2)The notice must include particulars of the land the subject of the declaration.

(3)The registrar must keep records that show the land is not transferable land.

(4)The registrar must keep the records in a way that a search of the appropriate register kept by the registrar will show the land is not transferable land.

(5)As soon as practicable after a declaration is repealed—

(a)the chief executive must give the registrar notice of the fact; and

(b)the registrar must amend the registrar’s records to show the land the subject of the repealed declaration is transferable land.

s 17 ins 2008 No. 29 s 78

amd 2013 No. 23 s 352 sch 1 pt 1

18Requirements about plans of subdivision for declarations

(1)This section applies if—

(a)under section 13, the Minister declares land is not transferable land; and

(b)a plan of subdivision is lodged for the land under the Land Title Act or Land Act for the purpose of identifying the land; and

(c)the plan of subdivision has been consented to by the Minister.

(2)The registrar must register the plan of subdivision without the consent of anyone whose consent would otherwise have been required under the relevant section if the plan otherwise complies with the relevant section.

(3)In this section—

relevant section means—

(a)for freehold land—the Land Title Act, section 50; or

(b)for other land—the Land Act, section 290J.

s 18 ins 2008 No. 29 s 78

amd 2011 No. 26 s 145

pt 2 div 5 hdg amd 2011 No. 26 s 189 sch

19Land that is available State land—general

(1)Land is available State land if it is—

(a)land, other than excluded land, in which no person other than the State has an interest; or

(b)land, other than excluded land, that is subject to an interest issued by the State, if an available State land agreement is in force for the land.

(2)Subsection (1) is subject to sections 21 and 22.

(3)In this section—

interest means a legal or equitable interest in the land but does not include native title, a mining interest or an easement.

s 19 amd 1993 No. 85 s 168G (amd 1994 No. 61 s 2 sch 2); 1995 No. 57 s 4 sch 1; 2008 No. 29 s 73 sch

sub 2011 No. 26 s 147

20Agreement about particular land

(1)The Minister may enter into a written agreement (an available State land agreement) about land, other than excluded land—

(a)with a person who has an interest in the land granted by the State; and

(b)under which the State and the person agree that the land may be available State land.

(2)The Minister may enter into an available State land agreement for particular land only if satisfied that entering into the agreement is appropriate in the circumstances having regard to an evaluation of the land under the Land Act, section 16.

(3)An available State land agreement must provide that on the grant of the land under part 4 the person’s interest in the land is to cease and a new interest granted by the trustee of the land is to have effect in substitution for the person’s interest.

(4)However, if the interest is a lease granted under the Land Act, the agreement may provide that the interest is to continue in force under section 41.

(5)Subsection (6) applies if a proposed available State land agreement is to state that a person’s interest in land is to cease and a new interest granted by the proposed trustee of the land is to have effect in substitution for the person’s interest.

(6)To remove any doubt, it is declared that the Minister need not enter into the available State land agreement unless satisfied a new interest granted by the proposed trustee of the land is to have effect in substitution for the person’s interest in the land.

s 20 ins 2011 No. 26 s 147

21Watercourses and lakes

Available State land includes a watercourse or lake only to the extent the watercourse or lake is—

(a)within the external boundaries of land that is otherwise available State land; and

(b)capable of being owned in fee simple by a person other than the State.

s 21 amd 2010 No. 12 s 234; 2011 No. 26 s 189 sch

22Tidal land

(1)Available State land includes tidal land only if the Minister declares the particular tidal land to be available State land.

(2)Subject to subsection (1), this Act applies to tidal land as if it were not tidal land.

s 22 amd 1993 No. 85 s 168H (amd 1994 No. 61 s 2 sch 2); 1994 No. 49 s 6 sch 2; 1994 No. 81 s 527 sch 5; 2011 No. 26 s 189 sch; 2019 No. 17 s 89

23Meaning of city or town land

(1)Subject to subsection (2), city or town land is land that is within the boundaries of a city or town constituted under the Local Government Act 2009.

(2)The Minister may declare a change to the boundaries of a city or town.

(3)A declaration under subsection (2) has effect only for this Act.

s 23 amd 1993 No. 85 s 168I (amd 1994 No. 61 s 2 sch 2); 2009 No. 17 s 331 sch 1; 2011 No. 26 s 148; 2019 No. 17 s 90

24Meaning of township land

A regulation may declare that land is township land for this Act.

s 24 sub 1993 No. 85 s 168J (amd 1994 No. 61 s 2 sch 2)

25National parks

To allay any doubt, it is declared that available State land includes any national park.

s 25 amd 2011 No. 26 s 189 sch

26Land that is not available State land

(1)To remove any doubt, it is declared that the following land is not available State land—

(a)the waters of the sea, and the seabed, other than tidal land declared to be available State land under section 22(1);

(b)freehold land;

(c)land subject to a lease, licence or permit under the Land Act.

(2)Despite subsection (1)(c), land subject to a lease, licence or permit under the Land Act is available State land if an available State land agreement is in force for the land.

s 26 amd 1994 No. 81 s 527 sch 5; 2008 No. 29 s 73 sch

sub 2011 No. 26 s 149

27Torres Strait area

(1)The Torres Strait area is—

(a)the area the boundaries of which are described in the Torres Strait Treaty, annex 9; and

(b)any other area declared by regulation to be included in the Torres Strait area.

(2)An area declared under subsection (1)(b) may be described in any way.

s 27 sub 1993 No. 85 s 168K (amd 1994 No. 61 s 2 sch 2)

28Application of laws

(1)To allay any doubt, it is declared that, except as provided by this Act or any other Act, the laws of the State apply to Torres Strait Islander land, persons and things on Torres Strait Islander land, and acts and things done on Torres Strait Islander land, to the same extent, and in the same way, as if the land were not Torres Strait Islander land.

(2)Without limiting subsection (1), to allay any doubt it is declared that this Act has effect subject to the following Acts—

(a)Fisheries Act 1994;

(b)Torres Strait Fisheries Act 1984.

s 28 amd 1994 No. 37 s 244 sch 2

pt 2A hdg ins 2014 No. 45 s 35

pt 2A div 1 hdg ins 2014 No. 45 s 35

28AOverview

This part—

(a)allows available land to be granted in freehold under the Land Act to an eligible person for the available land; and

(b)requires—

(i)the trustee of freehold option land to consult on and make a freehold instrument; and

(ii)the local government for the area in which the land is situated to attach the freehold instrument to its planning scheme; and

(c)sets out how, and to whom, the trustee may allocate available land depending on whether the person is an eligible person.

s 28A ins 2014 No. 45 s 35

pt 2A div 2 hdg ins 2014 No. 45 s 35

28BDefinitions for pt 2A

In this part—

allocation method, for available land, means—

(a)the auction, ballot or tender to be used to allocate the available land; and

(b)the conditions of the auction, ballot or tender.

allocation notice see section 28Z(1)(a).

allocation process, for available land, means—

(a)if there is an interest holder for the available land—the process stated in division 5; or

(b)otherwise—the process stated in division 6.

appeal period, for available land, means the period starting on the day a person receives an information notice in relation to the available land and ending—

(a)if no notice of appeal is filed in relation to the available land—on the last day for making an appeal; or

(b)if a notice of appeal is filed in relation to the available land—when the appeal is finally decided.

available land see section 28D(3).

closing day for division 6, see section 28ZA(1)(d).

eligibility criteria see section 28D(6)(a).

eligible person, for available land, means a person who meets the eligibility criteria for the land and is—

(a)a Torres Strait Islander or Aboriginal person; or

(b)the spouse or former spouse of—

(i)a person mentioned in paragraph (a); or

(ii)a Torres Strait Islander or Aboriginal person who is deceased.

freehold instrument means a freehold schedule and the freehold policy for the freehold schedule.

freehold option land means land in an indigenous local government’s area if—

(a)any of the following entities are the trustee of the land—

(i)an indigenous local government;

(ii)a land trust;

(iii)another entity holding the land under this Act; and

(b)the land is in an urban area.

freehold policy, for a freehold schedule, see section 28D(5).

freehold schedule—

(a)means a schedule made as mentioned in section 28D(1) by the trustee of freehold option land; and

(b)includes a model freehold schedule.

indigenous local government see the Local Government Act 2009, schedule 4.

interest holder, for available land, means a person who holds any of the following interests in the land—

(a)a registered lease granted under this Act or the Land Act, other than a townsite lease;

(b)a lease entitlement under the new Land Holding Act;

(c)a 1985 Act granted lease or a new Act granted lease under the new Land Holding Act;

(d)a registered sublease, including a registered sublease of a townsite lease;

(e)a residential tenancy agreement for a social housing dwelling situated on the available land;

(f)a right to occupy or use the available land under section 148.

s 28B def interest holder amd 2019 No. 7 s 300

model freehold instrument, for division 4, subdivision 2, see section 28F.

model freehold schedule see section 28D(4).

native title holder has the same meaning as it has in the Commonwealth Native Title Act.

offer means an offer to an eligible person by a trustee to allocate available land to the person under section 28T.

planning scheme means a planning scheme under the Planning Act 2016.

s 28B def planning scheme sub 2016 No. 27 s 559

probity advisor see section 28ZB(1).

urban area means an area identified as an area intended for either urban purposes or future urban purposes on a map in a planning scheme used to show zones.

urban purposes means purposes for which land is used in cities or towns, including residential, industrial, sporting, recreation and commercial purposes.

s 28B ins 2014 No. 45 s 35

pt 2A div 3 hdg ins 2014 No. 45 s 35

28CApproval for grant of available land

(1)The trustee of freehold option land may apply to the chief executive, in the approved form, for available land to be granted in fee simple under the Land Act to the eligible person who has been allocated the available land under this part.

(2)The trustee may make the application only if—

(a)there is a freehold instrument for the available land; and

(b)the trustee has followed the allocation process for the available land.

(3)Information in the application must, if the approved form requires, be verified by a statutory declaration.

(4)In deciding the application, the chief executive—

(a)must be reasonably satisfied—

(i)agreements or arrangements appropriate to granting the available land as freehold have been entered into or are in place, including, for example, in relation to the following—

(A)native title;

(B)any social housing dwelling on the available land;

(C)road access to the available land; and

(ii)there is a lot on plan description for the available land; and

(iii)if the available land is allocated under section 28ZF—a probity advisor has certified the probity of the allocation process for the available land; and

(b)may consider any other matter the chief executive reasonably considers relevant.

(5)If the chief executive approves the application, the Governor in Council may grant the land in fee simple under the Land Act.

Note—

See the Land Act, section 14.

s 28C ins 2014 No. 45 s 35

pt 2A div 4 hdg ins 2014 No. 45 s 35

pt 2A div 4 sdiv 1 hdg ins 2014 No. 45 s 35

28DTrustee may make freehold instrument

(1)The trustee of freehold option land may, by resolution, make a schedule identifying the freehold option land available to be granted in freehold.

(2)The freehold schedule must identify the freehold option land so the boundaries of the land are capable of being decided.

(3)Freehold option land identified in a freehold schedule is available land.

(4)A freehold schedule that only identifies freehold option land of a type prescribed by regulation for this subsection is a model freehold schedule.

(5)If the trustee makes a freehold schedule, the trustee must, by resolution, make a policy (a freehold policy) at the same time to help the trustee in implementing the freehold schedule.

(6)The freehold policy must be in the approved form and state—

(a)the criteria (the eligibility criteria) for participating in the allocation process for available land; and

(b)if there is no interest holder for available land—the allocation method for available land; and

(c)the sale price of available land and the costs to be recovered from the sale price; and

(d)the sale price of available land and the costs to be recovered from the sale price; and

(e)how the trustee will deal with interests in, or in relation to, available land, before it is allocated; and

(f)the social and financial implications for the community in providing freehold; and

(g)the social and financial implications for any eligible person who is granted freehold; and

(h)the potential to attract investment and new members into the community; and

(i)any other matter prescribed by regulation.

s 28D ins 2014 No. 45 s 35

28ETrustee may have only 1 freehold instrument

(1)The trustee of freehold option land may have only 1 freehold instrument for the land.

(2)However, if the trustee is an indigenous regional council, the trustee may have more than 1 freehold instrument only if the freehold instruments do not overlap in relation to available land.

(3)In this section—

indigenous regional council see the Local Government Act 2009, schedule 4.

s 28E ins 2014 No. 45 s 35

pt 2A div 4 sdiv 2 hdg ins 2014 No. 45 s 35

28FDefinition for sdiv 2

In this subdivision—

model freehold instrument means a model freehold schedule and the freehold policy for the model freehold schedule.

s 28F ins 2014 No. 45 s 35

28GApplication of sdiv 2

This subdivision states how a freehold instrument may be made, amended or repealed.

s 28G ins 2014 No. 45 s 35

28HMinister to make and publish guideline

(1)The Minister must make, and publish on the department’s website, a guideline about the process for—

(a)attaching a freehold instrument to a local government’s planning scheme; and

(b)amending or repealing a freehold instrument.

(2)The guideline must make provision for the local government to do all of the following things before attaching a freehold instrument to its planning scheme—

(a)publish a notice about the freehold instrument in a newspaper or other publication circulating generally in the local government’s area at least once;

(b)carry out public consultation about the freehold instrument;

(c)give the Minister a notice summarising the matters raised during the public consultation and stating how the local government or the trustee dealt with the matters.

s 28H ins 2014 No. 45 s 35

28lTrustee to consult

(1)Before the trustee of freehold option land starts the process for making a freehold instrument in relation to freehold option land, the trustee must decide on the way (the decided way) in which the trustee will consult about the making of the freehold instrument.

Note—

See section 135.

(2)The purpose of the consultation is to enable the trustee to be reasonably satisfied it is appropriate for the freehold option land to be granted in freehold.

(3)The decided way must—

(a)require the trustee to consult with the native title holders for the freehold option land proposed to be included in the freehold schedule; and

(b)include how the trustee will notify the community about the freehold instrument; and

(c)allow a suitable and sufficient opportunity for each person the trustee consults to express their views about the freehold instrument.

(4)The trustee must—

(a)consult on the freehold instrument in the decided way; and

(b)keep records about the consultation showing the consultation was consistent with the decided way.

s 28I ins 2014 No. 45 s 35

28JTrustee to give freehold instrument to Minister or local government

(1)This section applies if, after consulting on a proposed freehold instrument, the trustee decides to continue to make a freehold instrument

(2)The trustee must—

(a)for a model freehold instrument—give the model freehold instrument to the Minister for approval; or

(b)otherwise—ask, by notice, the local government for the area in which the proposed freehold option land is situated to attach the freehold instrument to the local government’s planning scheme.

(3)In this section—

proposed freehold option land means freehold option land proposed to be included in a freehold schedule

s 28J ins 2014 No. 45 s 35

28KLocal government to follow process in guideline

(1)This section applies if a local government receives a notice under section 28J(2)(b) in relation to a freehold instrument.

(2)The local government must follow the process stated in the guideline made by the Minister under section 28H.

(3)After the process is completed, the local government must give the freehold instrument to the Minister for approval.

s 28K ins 2014 No. 45 s 35

28LMinister may approve

(1)If the Minister is given a freehold instrument for approval, the Minister may—

(a)approve the freehold instrument; or

(b)approve the freehold instrument on the condition the trustee or local government for the available land amends the freehold instrument in the way the Minister directs; or

(c)refuse to approve the freehold instrument.

(2)In making a decision under subsection (1) about a freehold instrument, other than a model freehold instrument, the Minister must have regard to information given to the Minister by the local government for the freehold instrument after the local government has completed the process under section 28K.

(3)The Minister may approve a freehold instrument if reasonably satisfied—

(a)for a model freehold instrument—the model freehold schedule only includes freehold option land of a type prescribed by regulation for section 28D(4); and

(b)the trustee has consulted with the native title holders for the freehold option land proposed to be included in the freehold schedule; and

(c)the consultation was consistent with the way decided by the trustee under section 28I.

(4)The Minister must give notice of the decision under subsection (1) to the trustee and the local government for the freehold instrument.

(5)If the Minister approves a freehold instrument, the local government must—

(a)attach the freehold instrument to its planning scheme; and

(b)publish, in a newspaper or other publication circulating generally in the local government’s area at least once, a notice stating the freehold instrument is approved and attached to its planning scheme.

s 28L ins 2014 No. 45 s 35

28MAmending or repealing freehold instrument

A freehold instrument attached to a local government’s planning scheme may be amended or repealed by a trustee only by following the process stated in the guideline made by the Minister under section 28H.

s 28M ins 2014 No. 45 s 35

pt 2A div 4 sdiv 3 hdg ins 2014 No. 45 s 35

28NEffect of freehold instrument

A freehold instrument has effect on and after the day the local government for the area in which the available land is situated attaches the freehold instrument to the local government’s planning scheme.

s 28N ins 2014 No. 45 s 35

28ORelationship with planning scheme

(1)Attaching a freehold instrument to a planning scheme is not an amendment of the planning scheme.

(2)A freehold instrument attached to a planning scheme—

(a)does not form part of the planning scheme; and

(b)is the responsibility of the trustee for the available land; and

(c)if the planning scheme is amended or repealed and remade (with or without modification)—may be attached without amendment by the local government to the amended or remade planning scheme.

s 28O ins 2014 No. 45 s 35

pt 2A div 5 hdg ins 2014 No. 45 s 35

28PApplication of div 5

This division states the allocation process for available land if there is an interest holder for the available land.

s 28P ins 2014 No. 45 s 35

28QApplication for available land

A person who is an eligible person and an interest holder for available land may apply, in the approved form, to the trustee of the land for the land to be granted to the person.

s 28Q ins 2014 No. 45 s 35

28RDwelling on available land

(1)This section applies if a dwelling is situated on available land the subject of the application.

(2)The trustee must give notice about the application to the housing chief executive.

(3)Within 28 days after receiving the notice, the housing chief executive must give the trustee a notice (a dwelling notice) stating whether—

(a)the dwelling is a social housing dwelling; and

(b)if the dwelling is a social housing dwelling—the housing chief executive consents to the applicant making the application.

(4)In deciding whether to consent to the applicant making the application, the housing chief executive must have regard to whether it would be more appropriate in the circumstances for the dwelling to continue to be social housing.

(5)If the dwelling notice states the housing chief executive consents to the applicant making the application, the trustee must decide the price of the dwelling—

(a)by agreement with the housing chief executive; or

(b)by using a methodology agreed between the trustee and the housing chief executive.

(6)The housing chief executive must, if asked, give a person a copy of the methodology.

s 28R ins 2014 No. 45 s 35

amd 2019 No. 7 s 301

28SDecision on application

(1)The trustee must consider the application and decide to approve or refuse the application.

(2)However, if a dwelling is situated on the available land the subject of the application, the trustee—

(a)must not decide the application until the trustee receives a notice from the housing chief executive under section 28R(3); and

(b)must refuse the application if the notice states the dwelling is a social housing dwelling and the housing chief executive does not consent to the applicant making the application.

(3)The trustee may approve the application only if the trustee is reasonably satisfied—

(a)the applicant is an eligible person for the available land the subject of the application; and

(b)if there is more than 1 interest holder for the available land and all interest holders are eligible persons, either—

(i)all interest holders for the available land have made the application; or

(ii)all interest holders for the available land have consented to the applicant making the application; and

(c)if there is more than 1 interest holder for the available land and paragraph (b) does not apply—all interest holders for the available land have consented to the applicant making the application; and

(d)if there is a mortgage over the available land—the mortgagee has consented to the applicant making the application.

(4)If the trustee is reasonably satisfied of the matters mentioned in subsection (3), the trustee must approve the application.

(5)If the trustee decides to refuse the application, the trustee must give the applicant an information notice for the decision.

s 28S ins 2014 No. 45 s 35

28TOffer to allocate available land

(1)If the trustee approves the eligible person’s application, the trustee must offer, in writing, to allocate the available land to the eligible person.

(2)However, the trustee may make the offer only after the appeal period for the available land.

(3)If there is a social housing dwelling on the available land, the trustee must make the offer subject to a condition that the eligible person must purchase the dwelling at the price decided under section 28R(5).

(4)The trustee may make the offer subject to any other conditions the trustee reasonably considers necessary.

(5)In deciding whether to impose conditions on the offer under subsection (4), the trustee must have regard to the freehold instrument.

(6)If the trustee decides to impose conditions on the offer, other than a condition mentioned in subsection (3), the trustee must give the eligible person an information notice for the decision.

(7)The trustee must give notice to the chief executive in the approved form about the offer.

s 28T ins 2014 No. 45 s 35

amd 2019 No. 7 s 302

28UAcceptance and refusal of offer

(1)On receipt of the trustee’s offer, the eligible person may accept or refuse the offer by notice given to the trustee.

(2)However, if the eligible person does not give notice to the trustee within 45 days after the eligible person receives the offer, the eligible person is taken to have refused the offer.

(3)If the eligible person refuses the offer, the trustee must give notice about the refusal to the chief executive.

s 28U ins 2014 No. 45 s 35

28VCooling-off period to apply to acceptance

(1)A cooling-off period, for accepting an offer, is a period of 5 business days—

(a)starting on the day the eligible person gives notice about accepting the offer to the trustee; and

(b)ending at 5p.m. on the fifth business day after the day mentioned in paragraph (a).

(2)An eligible person who accepts, or proposes to accept, an offer may give written notice to the trustee—

(a)waiving the cooling-off period for accepting the offer; or

(b)shortening the cooling-off period for accepting the offer.

(3)An eligible person who has not waived the cooling-off period for accepting an offer may rescind or revoke the acceptance by giving a signed notice of rescission or revocation to the trustee at any time during—

(a)the cooling-off period; or

(b)if the period has been shortened under subsection (2)(b), the shortened period.

(4)If the acceptance is rescinded or revoked under subsection (3), the trustee must, within 14 days, refund any deposit paid under the acceptance to the eligible person.

(5)An amount payable to the eligible person under subsection (4) is recoverable from the trustee as a debt.

s 28V ins 2014 No. 45 s 35

28WWhen offer ends

An offer ends when the first of the following happens—

(a)the eligible person refuses the offer under section 28U;

(b)the eligible person gives notice of rescission or revocation of acceptance to the trustee under section 28V;

(c)the eligible person dies;

(d)the eligible person is no longer an interest holder for the available land;

(e)if the offer includes a condition about when the offer ends—the day the offer ends under the condition.

s 28W ins 2014 No. 45 s 35

28XAllocation of available land to eligible person

(1)After complying with all conditions of the offer, the eligible person must give notice to the trustee.

(2)If, after receiving the notice, the trustee is reasonably satisfied the eligible person has complied with all conditions of the offer, the trustee must allocate the available land to the eligible person.

Note—

Available land may be granted in freehold to an eligible person who is allocated the available land. See section 28C.

s 28X ins 2014 No. 45 s 35

pt 2A div 6 hdg ins 2014 No. 45 s 35

28YApplication of div 6

This division states the allocation process for available land if there is no interest holder for the available land.

Note—

A freehold instrument states the allocation method for available land. See section 28D(6).

s 28Y ins 2014 No. 45 s 35

28ZPublic notice of intention to allocate available land

(1)Before allocating available land, the trustee of the available land must publish notice of the trustee’s intention to allocate the available land—

(a)by gazette notice (the allocation notice); and

(b)in a newspaper or other publication circulating generally in the area in which the land is situated at least once.

(2)The trustee may act under subsection (1) only if—

(a)there is a lot on plan description for the available land; and

(b)there is dedicated access to the available land; and

(c)native title over the available land has been, or will be, surrendered or extinguished; and

(d)the trustee has given notice to the chief executive about the trustee’s intention to allocate the available land.

s 28Z ins 2014 No. 45 s 35

28ZAInformation to be included in allocation notice

(1)The allocation notice must include the following information for the available land—

(a)the eligibility criteria;

(b)the allocation method;

(c)the conditions applying to an offer of the available land;

(d)the day (the closing day) applications to participate in the allocation process close;

(e)the time and place for making applications;

(f)the reserve or purchase price;

(g)the deposit, if any, to be paid to participate in the allocation process and the proposed date, time and place for payment of the deposit;

(h)the proposed date, time and place where the available land will be allocated;

Note—

After the appeal period for the available land, the trustee must give notice of the date, time and place where the available land will be allocated. See section 28ZD.

(i)the name and contact details of the probity advisor appointed.

(2)The closing day must be at least 30 days after the allocation notice is gazetted.

s 28ZA ins 2014 No. 45 s 35

28ZBProbity advisor

(1)The trustee must appoint an appropriately qualified and independent person (a probity advisor) to ensure the probity of the allocation process for the available land.

(2)The probity advisor must—

(a)monitor the allocation process for the available land; and

(b)advise the trustee on matters relating to the probity of the allocation process; and

(c)prepare and give to the trustee a report about the probity of the allocation process and, if reasonably satisfied the allocation process was undertaken correctly, certify that fact.

s 28ZB ins 2014 No. 45 s 35

28ZCDecision on application to participate in allocation process

(1)As soon as practicable after the closing day, the trustee must decide whether each applicant is an eligible person for the available land and give each applicant a notice about the decision.

(2)If the trustee decides an applicant is an eligible person for the available land, the trustee must allow the applicant to participate in the allocation process for the available land.

(3)If the trustee decides an applicant is not an eligible person for the available land, the trustee—

(a)must give the applicant an information notice for the decision; and

(b)must not allow the applicant to participate in the allocation process for the available land.

s 28ZC ins 2014 No. 45 s 35

28ZDNotice of allocation of available land

(1)After the appeal period for the available land, the trustee must give each applicant who is able to participate in the allocation process for the available land a notice stating—

(a)the date, time and place where the available land will be allocated (the allocation date); and

(b)if the allocation notice requires a deposit to be paid—the date by which the deposit must be paid; and

(c)the applicant must give notice to the trustee before the allocation date if the applicant no longer wishes to participate in the allocation process.

(2)The date mentioned in subsection (1)(b) must be—

(a)at least 30 days after the notice under this section is given; and

(b)before the allocation date.

(3)If the applicant does not pay the deposit by the date mentioned in subsection (1)(b), the applicant must not participate in the allocation process.

s 28ZD ins 2014 No. 45 s 35

28ZEHow and when trustee may allocate

The trustee may allocate the available land only—

(a)after the end of the appeal period; and

(b)by using the allocation method consistent with all of the following for the available land—

(i)the freehold instrument;

(ii)the allocation notice;

(iii)the probity advisor’s advice.

s 28ZE ins 2014 No. 45 s 35

28ZFAllocation of available land

The trustee must allocate the available land to the eligible person who is the winner under the allocation method used to allocate the available land.

Note—

Available land may be granted in freehold to an eligible person who is allocated the available land. See section 28C.

s 28ZF ins 2014 No. 45 s 35

28ZGDeposits

The trustee must refund the deposit of each unsuccessful applicant after the trustee allocates the available land.

s 28ZG ins 2014 No. 45 s 35

pt 2A div 7 hdg ins 2014 No. 45 s 35

28ZHContinuation of mortgages and easements

A deed of grant for available land approved to be granted in fee simple under section 28C is subject to all registered mortgages and easements to which the available land was subject immediately before it was granted, and in the same priorities.

s 28ZH ins 2014 No. 45 s 35

28ZICancellation of deeds of grant in trust, reserves etc.

(1)This section applies if—

(a)available land is subject to any of the following (each an old tenure) when the trustee for the land applies for the land to be granted in fee simple under section 28C—

(i)a deed of grant in trust;

(ii)a reserve dedicated under the Land Act;

(iii)a townsite lease;

(iv)an interest mentioned in section 28B, definition interest holder; and

(b)a deed of grant in fee simple (a new tenure) for the available land is registered.

(2)The old tenure is cancelled to the extent of the new tenure.

s 28ZI ins 2014 No. 45 s 35

amd 2019 No. 17 s 91

pt 3 hdg ins 2011 No. 26 s 150

29Purpose of pt 3

The purpose of this part is to provide for a process under which Torres Strait Islanders may formally express an interest to the chief executive in having particular land made transferable land.

s 29 prev s 29 ins 1993 No. 85 s 168N (amd 1994 No. 61 s 2 sch 2)

amd 2008 No. 29 s 84

om 2011 No. 26 s 156

pres s 29 ins 2011 No. 26 s 150

30Land to which pt 3 applies

This part applies to the following land—

(a)available State land;

(b)land dedicated as a reserve under the Land Act;

(c)land subject to an occupation licence;

(d)land held under a lease under the Land Act by or for Torres Strait Islanders.

s 30 ins 2011 No. 26 s 150

31Expression of interest in having land made transferable land

(1)Torres Strait Islanders particularly concerned with land mentioned in section 30 may, by notice given to the chief executive (an expression of interest), express an interest in having the land made transferable land.

(2)The expression of interest must—

(a)be in the approved form; and

(b)include the details required in the approved form to enable the chief executive to properly consider the expression of interest.

s 31 ins 2011 No. 26 s 150

32Chief executive to consider expression of interest

(1)The chief executive must consider each expression of interest.

(2)Without limiting subsection (1), the chief executive may consider an expression of interest by evaluating the land to which it relates under the Land Act, section 16.

s 32 ins 2011 No. 26 s 150

33Consideration of expression of interest does not impose obligation on State

The chief executive’s consideration of an expression of interest does not impose an obligation on the State under this Act to make the land to which it relates transferable land.

s 33 ins 2011 No. 26 s 150

pt 4 div 1 sdiv 2 hdg ins 2008 No. 29 s 85

om 2011 No. 26 s 163

pt 4 div 1 sdiv 3 hdg ins 2008 No. 29 s 85

om 2011 No. 26 s 163

pt 4 div 1 sdiv 4 hdg ins 2008 No. 29 s 85

om 2011 No. 26 s 163

pt 4 div 1 sdiv 5 hdg ins 2008 No. 29 s 85

om 2011 No. 26 s 163

pt 4 div 1 sdiv 6 hdg ins 2008 No. 29 s 85

om 2011 No. 26 s 163

pt 4 div 1 sdiv 7 hdg ins 2008 No. 29 s 85

om 2011 No. 26 s 163

34Deeds of grant to be prepared

(1)The chief executive must prepare such deeds of grant in fee simple as the Minister considers necessary and directs over transferable lands.

(2)Transferable land need not be surveyed but may be described in a deed of grant in such manner as the Minister directs.

(3)The deed of grant must show that the land is held by the grantee—

(a)if the grantee is a registered native title body corporate appointed as the grantee under section 35—for the native title holders of the land; or

(b)otherwise—for the benefit of Torres Strait Islanders particularly concerned with the land and their ancestors and descendants.

(4)If the grantee is a registered native title body corporate appointed under section 35, the deed of grant also must include information to identify the native title holders of the land.

(5)Subsections (2), (3) and (4) have effect despite any other Act or any rule of law or practice.

s 34 prev s 34 om 2011 No. 26 s 161

pres s 34 amd 2008 No. 29 s 79; 2010 No. 39 s 321; 2011 No. 26 s 151

35Appointment of registered native title body corporate as grantee to hold land for native title holders

(1)This section applies to transferable land if—

(a)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and

(b)there is a registered native title body corporate for the determination.

(2)The Minister may, with the consent of the registered native title body corporate, appoint the body corporate to be the grantee of the land under a deed of grant prepared under section 34.

(3)If the Minister appoints the registered native title body corporate to be the grantee of the land under this section, the body corporate holds the land for the native title holders of the land the subject of the determination mentioned in subsection (1)(a).

(4)In considering whether to appoint a registered native title body corporate under this section, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example—

(a)whether the making of the proposed appointment was a matter relevant to the native title claim under the Commonwealth Native Title Act that resulted in the determination that native title existed in relation to all or a part of the land; and

(b)whether any Torres Strait Islanders particularly concerned with the land, other than the native title holders of the land, may be adversely affected by the proposed appointment; and

(c)if the Minister is satisfied Torres Strait Islanders particularly concerned with the land will be adversely affected by the proposed appointment—any action the registered native title body corporate intends to take to address the concerns of the Torres Strait Islanders.

s 35 ins 2008 No. 29 s 80

amd 2010 No. 39 s 322; 2011 No. 26 s 152

36Appointment of grantee to hold land for benefit of Torres Strait Islanders

(1)This section applies if the Minister does not appoint, under section 35, a registered native title body corporate as the grantee of land.

(2)The Minister may appoint as grantee of the land—

(a)a CATSI corporation that is qualified to hold the land; or

(b)a land trust.

(3)However, the Minister may appoint a CATSI corporation that is a registered native title body corporate as the grantee of the land under subsection (2) only if—

(a)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land and the CATSI corporation is the registered native title body corporate for the determination; or

(b)a determination has not been made under the Commonwealth Native Title Act that native title exists in relation to all or a part of the land, but the Minister is satisfied it is appropriate in all the circumstances to appoint the CATSI corporation as the grantee of the land.

Examples of when it is appropriate to appoint the CATSI corporation as the grantee of the land—

1The appointment of the CATSI corporation is supported by consultation with Torres Strait Islanders particularly concerned with the land.

2The land is within the external boundaries of an area of land the subject of a native title determination and the CATSI corporation is the registered native title body corporate for the determination.

3An ILUA has been entered into for the land and the CATSI corporation is nominated in the ILUA as the proposed grantee for the land under this Act.

4Anthropological research supports the CATSI corporation as being the appropriate grantee.

(4)Before making the appointment, the Minister must consult with, and consider the views of, Torres Strait Islanders particularly concerned with the land.

(5)Subsection (4) does not apply if an ILUA has been entered into for the land and the entity is nominated in the ILUA as the proposed grantee for the land under this Act.

(6)However, in considering whether to appoint an entity nominated in an ILUA as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example—

(a)whether any Torres Strait Islanders particularly concerned with the land may be adversely affected by the appointment; and

(b)if the Minister is satisfied any Torres Strait Islanders particularly concerned with the land will be adversely affected by the appointment—any action the entity intends to take to address the concerns of the Torres Strait Islanders.

(7)Also, in considering whether to appoint a registered native title body corporate as the proposed grantee for the land, the Minister may have regard to any matter the Minister considers relevant to the proposed appointment, including, for example, the matters mentioned in section 35(4)(b) and (c).

(8)In appointing a grantee of land under this section, the Minister must have regard to any Island custom applicable to the land.

s 36 amd 1991 No. 76 s 46; 1993 No. 85 s 168L (amd 1994 No. 61 s 2 sch 2); 2008 No. 29 s 81; 2010 No. 39 s 323

sub 2011 No. 26 s 153

amd 2019 No. 7 s 303

37Procedure for appointing particular grantee

(1)Before appointing a grantee of land under this part, other than an entity nominated in an ILUA as the proposed grantee for the land, the Minister must—

(a)publish notice of the Minister’s intention to appoint the grantee in a newspaper or other publication circulating generally in the area in which the land the subject of the deed of grant is situated; and

(b)consider all representations made to the Minister under subsection (4).

(2)The notice must—

(a)include a description of the land; and

(b)state the following—

(i)the name of the proposed grantee;

(ii)that a Torres Strait Islander particularly concerned with the land may make written representations to the Minister about the proposed appointment;

(iii)the place where the representations may be made;

(iv)the period in which the representations must be made.

(3)The stated period must end at least 28 days after the notice is published.

(4)A Torres Strait Islander particularly concerned with the land may make written representations about the proposed appointment to the Minister within the stated period.

s 37 ins 2011 No. 26 s 153

38Minister to act as soon as possible

(1)The Minister must, as soon as practicable after the commencement of sections 34 and 36, give all necessary directions under section 34, and make all necessary appointments under section 35 or 36, in relation to land that is transferable land on the enactment day.

(2)If, under section 9(1)(c) or 11, land becomes transferable land after the enactment day, the Minister must, as soon as practicable after the land becomes transferable land, give all necessary directions under section 34, and make all necessary appointments under section 35 or 36, in relation to the land.

(3)However, the Minister need not act as mentioned in subsections (1) and (2) in relation to land until the Minister is reasonably satisfied—

(a)arrangements are in place to ensure—

(i)the Commonwealth and the State can continue to provide services to communities on the land after it is granted; and

(ii)the local government for the area in which the land is situated can continue to provide local government services to communities on the land after it is granted; and

Example of an arrangement for paragraph (a)—

a lease

(b)if the land is proposed to be granted to an entity other than a registered native title body corporate, arrangements that the Minister considers necessary—

(i)to support use of the land by Torres Strait Islanders particularly concerned with it; and

(ii)to ensure appropriate services, including, for example, social housing, public works and community infrastructure, can be provided for communities on the land;

are in place to deal with matters relevant to the use of the land after it is granted; and

Example of an arrangement for paragraph (b)—

an ILUA

(c)if the land is or includes township land, arrangements are in place to provide for—

(i)the township land to continue to be used as township land; and

(ii)residents of the township land to continue to live on and access the land, and obtain tenure over the land under this Act.

Examples of an arrangement for paragraph (c)—

an ILUA, a townsite lease or another lease

(4)In this section—

local government services includes any services a local government might ordinarily provide for the community in its local government area.

s 38 amd 1993 No. 85 s 168M (amd 1994 No. 61 s 2 sch 2); 2008 No. 29 s 83; 2011 No. 26 s 155

39Authority to grant fee simple in transferable land

The Governor in Council may, under this Act and the Land Act, grant transferable land in fee simple.

s 39 amd 2008 No. 29 s 73 sch

40Deed of grant takes effect on delivery

(1)A deed of grant prepared under this division takes effect on the delivery of the deed to the grantee.

(2)On delivery of the deed of grant to the grantee, the land the subject of the deed becomes Torres Strait Islander land that is transferred land.

(3)Subsection (1) has effect despite any other Act or any rule of law or practice.

s 40 amd 2011 No. 26 s 157

41Existing interests

(1)If transferable land was, immediately before becoming Torres Strait Islander land under this division, subject to an interest or benefited by an easement, the interest continues in force or the land continues to be benefited by the easement.

(2)Without limiting subsection (1), if transferable land was, immediately before becoming Torres Strait Islander land under this division, the subject of—

(a)a 1985 Act granted lease or a new Act granted lease under the new Land Holding Act; or

(b)a lease under the Land Act; or

(c)a trustee (Torres Strait Islander) lease;

the trustee of the land is, by operation of this section, substituted for the lessor as a party to the lease.

(3)The terms of a lease mentioned in subsection (2) are not affected by the operation of this section or any other provision of this Act and, for the purposes of those terms, the Land Act continues to apply to a lease under that Act, with all necessary modifications and such modifications as are prescribed, as if the lease continued to be such a lease and the trustee of the land were the lessor.

(4)However, subsection (5) applies to an interest in transferable land (the previous interest) that, under an available State land agreement, is to cease on the grant of the land under this part and a new interest granted by the trustee of the land is to have effect in substitution for the previous interest on the grant of the land.

(5)Despite subsections (1) to (3), on the grant of the land the previous interest ceases.

(6)Subsection (5) applies despite any other Act.

(7)In this section—

interest includes—

(a)native title; and

(b)a right of a local government to access, occupy, use or maintain a facility on the land; and

(c)an interest in favour of the State or Commonwealth other than an interest that is not registered.

s 41 amd 1991 No. 76 s 47; 1993 No. 85 s 169; 1994 No. 81 s 527 sch 5; 2008 No. 29 s 73 sch; 2010 No. 39 s 324; 2011 No. 26 s 158; 2013 No. 2 ss 152, 155; 2019 No. 17 s 92

41AExisting interests held by local government

(1)This section applies if a local government has an existing interest under section 41 to access, occupy, use or maintain a facility on Torres Strait Islander land.

(2)If the local government does not intend to continue to access, occupy, use or maintain the facility, the local government must give the trustee of the land notice of that fact.

(3)If subsection (2) does not apply, the local government and the trustee of the land must use their best endeavours to provide for the continued access, occupation, use or maintenance of the facility under a registered interest in the land given by the trustee of the land.

s 41A ins 2013 No. 2 s 153

amd 2013 No. 23 s 352 sch 1 pt 1

43Cancellation of deed of grant in trust

(1)This section applies if a deed of grant (the new deed) over the whole or a part of the land comprised in a deed of grant in trust takes effect under section 40.

(2)The deed of grant in trust is cancelled to the extent of the new deed.

s 43 amd 2008 No. 29 s 73 sch; 2011 No. 26 s 160

sub 2013 No. 23 s 209

44Land Court may resolve difficulties

(1)If a difficulty arises in—

(a)the application of this division to a particular matter; or

(b)the application, to a particular matter, of a provision of another Act because of the operation of this division;

the Land Court may, on the application of the chief executive or an interested person, make such order as it considers proper to resolve the difficulty.

(2)An order made under subsection (1) has effect despite anything contained in this division or in an Act in force immediately before the commencement of this section.

s 44 amd 2011 No. 26 s 162

pt 4 div 2 hdg sub 2011 No. 26 s 163

pt 4 div 2 sdiv 1 hdg ins 2008 No. 29 s 85

om 2011 No. 26 s 163

45Application to hold Torres Strait Islander land for native title holders

(1)This section applies if—

(a)a CATSI corporation that is the trustee of Torres Strait Islander land becomes a registered native title body corporate after it became the trustee of the land; and

(b)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and

(c)the registered native title body corporate is registered on the National Native Title Register for the determination.

(2)The registered native title body corporate may apply to the Minister in the approved form for an approval to hold the land under this Act for the native title holders of the land.

s 45 amd 2002 No. 74 s 90 sch

sub 2008 No. 29 s 85; 2011 No. 26 s 163

46Decision on application

(1)The Minister must consider an application made under section 45 and decide—

(a)to give the approval; or

(b)to refuse the application.

(2)In considering the application, the Minister must have regard to—

(a)whether any Torres Strait Islanders particularly concerned with the land, other than native title holders of the land, may be adversely affected by the approval; and

(b)if the Minister is satisfied Torres Strait Islanders particularly concerned with the land will be adversely affected by the approval—any action the registered native title body corporate intends to take to address the concerns of the Torres Strait Islanders.

(3)The Minister may give the approval only if, having regard to the matters mentioned in subsection (2), the Minister is satisfied it is appropriate in the circumstances to give the approval.

s 46 sub 2008 No. 29 s 85; 2011 No. 26 s 163

47Notices about decision

(1)The Minister must give the registered native title body corporate notice of the Minister’s decision under section 46.

(2)If the Minister gives the approval, the chief executive must notify the approval by gazette notice.

(3)The gazette notice must—

(a)state the name of the registered native title body corporate; and

(b)include a description of the Torres Strait Islander land held by it that relates to the approval.

(4)As soon as practicable after the gazette notice is published, the chief executive must give the registrar of titles notice of the approval.

(5)The notice must include a description of the Torres Strait Islander land held by the registered native title body corporate for the native title holders of the land.

(6)On receiving the notice, the registrar must record in the freehold land register that the land is held under this Act by the registered native title body corporate for the native title holders of the land.

(7)In this section—

description, in relation to land, means the description of the land as shown in the freehold land register.

s 47 amd 2008 No. 29 s 86

sub 2011 No. 26 s 163

amd 2010 No. 31 s 575 sch 2 pt 4 (amdt could not be given effect); 2013 No. 23 s 352 sch 1 pt 1

48Effect of gazette notice

On publication of the gazette notice, the registered native title body corporate is taken to hold the land under this Act for the native title holders of the land.

s 48 ins 2011 No. 26 s 163

49Resource reservations under other Acts

A deed of grant of transferred land must contain the reservations to the State taken to be contained in the grant under the following—

•the Geothermal Energy Act 2010, section 29

•the Greenhouse Gas Storage Act 2009, section 28

•the Mineral Resources Act 1989, section 8

•the Petroleum Act 1923, section 10

•the Petroleum and Gas (Production and Safety) Act 2004, section 27.

s 49 sub 2010 No. 31 s 576

50Reservations of forest products and quarry material etc.

(1)A deed of grant of transferred land may contain a reservation to the State of forest products or quarry material above, on or below the surface of the land only if the Minister declares that—

(a)the forest products or quarry material is of vital State interest; and

(b)the rights in the forest products or quarry material is reserved to the State.

(2)If a deed of grant of transferred land does not contain a reservation of particular forest products or quarry material above, on or below the land, the Minister may declare that—

(a)the forest products or quarry material are of vital State interest; and

(b)rights in the forest products or quarry material are acquired by the State.

(3)If the Minister makes a declaration under subsection (1) or (2), the trustee of the land is entitled to be paid by the State such reasonable compensation because of the reservation or acquisition as is agreed between the State and the trustee or, failing agreement, as is determined by the Land Court.

(4)Despite subsection (1), a permit, lease, licence, agreement or contract granted or made under the Forestry Act 1959, before the day on which land became transferred land, in relation to the getting and selling of forest products or quarry material above, on or below the surface of the land, continues in force as if this section had not been enacted.

s 50 amd 1991 No. 76 s 48; 1993 No. 85 s 169B (amd 1994 No. 61 s 2 sch 2); 2011 No. 26 s 164; 2019 No. 17 s 94

pt 5 hdg sub 2011 No. 26 s 165

pt 5 div 1 hdg om 2011 No. 26 s 165

pt 5 div 2 hdg om 2011 No. 26 s 165

51Keeping register of entities holding Torres Strait Islander land

(1)The chief executive must keep a register of entities that hold Torres Strait Islander land (the Torres Strait Islander land holding entity register).

(2)The register must contain the following information for each entity—

(a)the entity’s name, address for the service of documents and contact telephone number;

(b)a description of the Torres Strait Islander land held by the entity.

(3)If the entity is a land trust, the register also must contain all the following information about the land trust—

(a)the names and addresses of all the current members of the land trust;

(b)the name of each member of the land trust’s executive committee, and the position held by the member;

(c)a contact telephone number for the chairperson and secretary of the land trust;

(d)a copy of the land trust’s adopted rules;

(e)copies of annual financial statements and audit reports the chief executive receives from the land trust under this Act;

(f)a statement about whether or not the land trust has, for each financial year, operated in compliance with the Act.

Note—

Under section 164, the chief executive must record in the register whether or not a land trust has operated in compliance with the Act.

(4)The chief executive may keep the register in the form the chief executive considers appropriate, including, for example, in electronic form.

s 51 amd 2004 No. 4 s 57 sch

sub 2011 No. 26 s 165

52Giving information for register to the chief executive

(1)Each entity, other than a land trust, that holds Torres Strait Islander land must—

(a)as soon as practicable after the end of each financial year, give to the chief executive the information mentioned in section 51(2) for the entity; and

(b)as soon as practicable after any of the information changes—give the chief executive a notice of the change.

(2)A land trust must give to the chief executive all the information the chief executive reasonably requires to ensure the information in the register about the land trust is accurate.

s 52 sub 2011 No. 26 s 165

amd 2013 No. 23 s 352 sch 1 pt 1

53Obtaining information in register

(1)A person may, in the approved form, ask the chief executive to give the person information included in the Torres Strait Islander land holding entity register.

(2)The chief executive must, if asked under subsection (1), give the person the information included in the publicly available part of the register.

(3)The chief executive may, if asked under subsection (1), give the person the additional information for a land trust only if the chairperson of the land trust consents in writing to the giving of the information.

(4)In this section—

additional information, for a land trust, means the following—

(a)the names of all the current members of the land trust;

(b)the information mentioned in section 51(3)(b), (d) or (e).

publicly available part, of the Torres Strait Islander land holding entity register, means the part of the register containing all the following information—

(a)the information mentioned in section 51(2);

(b)for a land trust—

(i)the names of the chairperson and secretary of the land trust; and

(ii)the information mentioned in section 51(3)(f).

s 53 sub 2011 No. 26 s 165

pt 6 hdg ins 2011 No. 26 s 165

pt 6 div 1 hdg ins 2011 No. 26 s 165

54Purpose of pt 6

The purpose of this part is to provide for—

(a)particular Torres Strait Islander land to vest in the State; and

(b)the transfer of Torres Strait Islander land that vests in the State to another entity to hold as Torres Strait Islander land.

s 54 sub 2011 No. 26 s 165

55Application of pt 6

This part applies to Torres Strait Islander land that is or was held by a CATSI corporation for the benefit of Torres Strait Islanders particularly concerned with the land and their ancestors and descendants, if—

(a)under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cwlth)—

(i)the corporation stops being registered; and

(ii)the land is vested in the State; or

(b)the corporation is no longer qualified to hold the land.

s 55 sub 2011 No. 26 s 165

pt 6 div 2 hdg ins 2011 No. 26 s 165

56Vesting of land in the State

(1)If the CATSI corporation is no longer qualified to hold the land, the Minister may, by gazette notice, declare that the land vests in the State.

(2)The gazette notice must—

(a)include a description of the land; and

(b)state the reason that the CATSI corporation is no longer qualified to hold the land.

s 56 amd 1993 No. 85 s 169C (amd 1994 No. 61 s 2 sch 2)

sub 2011 No. 26 s 165

57How land is held by the State

(1)This section applies if—

(a)the land vests in the State under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cwlth); or

(b)the land vests in the State under section 56.

(2)The land—

(a)vests in the State in fee simple; and

(b)the State holds the land for the benefit of the persons for whose benefit the land was held immediately before it vested in the State.

s 57 sub 2011 No. 26 s 165

58Minister to transfer land as soon as practicable

(1)The Minister must, by gazette notice as soon as practicable after the land vests in the State, transfer the land under this part.

(2)The gazette notice must include—

(a)a description of the land being transferred; and

(b)the name of the entity to whom the land is transferred.

s 58 amd 1993 No. 85 s 169D (amd 1994 No. 61 s 2 sch 2)

sub 2011 No. 26 s 165

59Transfer to registered native title body corporate to hold for native title holders

(1)This section applies if—

(a)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land; and

(b)there is a registered native title body corporate for the determination.

(2)The Minister may, with the consent of the registered native title body corporate, transfer the land to it.

(3)If the Minister transfers the land under this section to a registered native title body corporate, the body corporate holds the land for the native title holders of the land the subject of the determination mentioned in subsection (1)(a).

(4)In considering whether to transfer the land to a registered native title body corporate, the Minister may have regard to any matter the Minister considers relevant to the proposed transfer, including, for example—

(a)whether any Torres Strait Islanders particularly concerned with the land, other than the native title holders of the land, may be adversely affected by the proposed transfer; and

(b)if the Minister is satisfied any Torres Strait Islanders particularly concerned with the land will be adversely affected by the proposed transfer—any action the registered native title body corporate intends to take to address the concerns of the Torres Strait Islanders.

s 59 ins 1993 No. 85 s 169E (amd 1994 No. 61 s 2 sch 2)

sub 2011 No. 26 s 165

60Transfer to entity to hold for benefit of Torres Strait Islanders

(1)This section applies if the Minister does not transfer the land under section 59 to a registered native title body corporate.

(2)The Minister may transfer the land to—

(a)a CATSI corporation that is qualified to hold the land; or

(b)a land trust.

(3)However, the Minister may transfer the land to a CATSI corporation that is a registered native title body corporate under subsection (2) only if—

(a)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land and the CATSI corporation is the registered native title body corporate for the determination; or

(b)a determination has not been made under the Commonwealth Native Title Act that native title exists in relation to all or a part of the land, but the Minister is satisfied it is appropriate in all the circumstances for the land to be transferred to the CATSI corporation.

Examples of when it is appropriate for the land to be transferred to the CATSI corporation—

1The transfer to the CATSI corporation is supported by consultation with Torres Strait Islanders particularly concerned with the land.

2The land is within the external boundaries of an area of land the subject of a native title determination and the CATSI corporation is the registered native title body corporate for the determination.

3An ILUA has been entered into for the land and the CATSI corporation is nominated in the ILUA as the proposed transferee for the land under this Act.

4Anthropological research supports the CATSI corporation as being the appropriate transferee.

(4)Before transferring the land, the Minister must consult with, and consider the views of, the Torres Strait Islanders particularly concerned with the land.

(5)Also, in considering whether to transfer the land to a registered native title body corporate, the Minister may have regard to any matter the Minister considers relevant to the proposed transfer, including, for example—

(a)whether any Torres Strait Islanders particularly concerned with the land may be adversely affected by the proposed transfer; and

(b)if the Minister is satisfied any Torres Strait Islanders particularly concerned with the land will be adversely affected by the proposed transfer—any action the registered native title body corporate intends to take to address the concerns of the Torres Strait Islanders.

(6)In deciding to transfer land under this section, the Minister must have regard to any Island custom applicable to the land.

(7)If the land is transferred under this section, the entity to whom the land is transferred holds the land for the benefit of the persons for whose benefit the land was held immediately before it was transferred.

s 60 amd 1991 No. 76 s 49

sub 2011 No. 26 s 165

amd 2019 No. 7 s 304

61Procedure for transferring land

(1)Before transferring the land, the Minister must—

(a)publish notice of the Minister’s intention to transfer the land in a newspaper or other publication circulating generally in the area in which the land is situated; and

(b)consider all representations made to the Minister under subsection (4).

(2)The notice must—

(a)include a description of the land; and

(b)state the following—

(i)the name of the proposed transferee;

(ii)that a Torres Strait Islander particularly concerned with the land may make written representations to the Minister about the proposed transfer;

(iii)the place where the representations may be made;

(iv)the period in which the representations must be made.

(3)The stated period must end at least 28 days after the notice is published.

(4)A person mentioned in subsection (2)(b)(ii) may make written representations about the proposed transfer to the Minister within the stated period.

s 61 sub 2011 No. 26 s 165

62Effect of gazette notice about transfer

The transfer of the land under this part has effect on publication of the gazette notice about the transfer under section 58.

s 62 sub 2011 No. 26 s 165

pt 6 div 3 hdg ins 2011 No. 26 s 165

63Notice about land

(1)If land vests in the State or is transferred under this part, the chief executive must give the registrar notice of the vesting or transfer.

(2)The notice must include particulars of the land the subject of the vesting or transfer.

(3)On receiving the notice, the registrar must record in the freehold land register the vesting or transfer.

s 63 sub 2011 No. 26 s 165

amd 2013 No. 23 s 352 sch 1 pt 1

pt 7 hdg ins 2011 No. 26 s 165

pt 7 div 1 hdg ins 2011 No. 26 s 165

amd 2014 No. 45 s 37

64Power to deal with Torres Strait Islander land

(1)This section applies subject to this part and parts 2A and 8.

(2)The trustee of Torres Strait Islander land may—

(a)grant, transfer or otherwise create an interest in, or in relation to, the land in the way the trustee considers appropriate, including, for example, by—

(i)granting a lease or licence over all or a part of the land; or

(ii)consenting to the creation of a mining interest in the land; or

(iii)granting an easement over the land; or

(iv)entering into a conservation agreement under the Nature Conservation Act 1992, section 45, for the land; or

(v)entering into an agreement with the State or the Commonwealth in relation to the getting and sale of forest products or quarry material above, on or below the land; or

(b)dedicate a part of the land to public use by registering a plan of subdivision under the Land Title Act, part 4, division 3; or

(c)surrender all or a part of the land to the State.

(3)The lessee of a townsite lease may grant a licence for the use of all or a part of the lease land.

s 64 sub 2011 No. 26 s 165

amd 2014 No. 45 s 36

pt 7 div 2 hdg ins 2011 No. 26 s 165

67Prohibition on sale or mortgage of Torres Strait Islander land

The trustee of Torres Strait Islander land must not sell or mortgage the land.

s 67 sub 2011 No. 26 s 165

pt 7 div 4 hdg ins 2011 No. 26 s 165

pt 7 div 4 sdiv 1 hdg ins 2011 No. 26 s 165

70Application of sdiv 1

This subdivision applies to Torres Strait Islander land held by a land trust.

s 70 amd 2003 No. 77 s 122; 2008 No. 29 s 73 sch

sub 2011 No. 26 s 165

71Transfer of Torres Strait Islander land

(1)The trustee of the Torres Strait Islander land (the transferor) may transfer all or a part of the land only—

(a)with the Minister’s written approval; and

(b)to either of the following entities (the transferee)—

(i)another land trust;

(ii)a CATSI corporation that is qualified to hold the land.

(2)If a trustee transfers land under this subdivision—

(a)all improvements on the land must be transferred with the land; and

(b)for a transferee that is a registered native title body corporate—the transferee holds the land for—

(i)the native title holders of the land, if the transferor and the transferee agree it is to be held for the native title holders; or

(ii)the benefit of Torres Strait Islanders particularly concerned with the land and their ancestors and descendants, if subparagraph (i) does not apply to the transfer; and

(c)for a transferee that is not a registered native title body corporate—the transferee holds the land for the benefit of the Torres Strait Islanders particularly concerned with the land and their ancestors and descendants; and

(d)if all the Torres Strait Islander land held by the trustee is transferred to the transferee—

(i)the land trust for the land that is transferred is dissolved; and

(ii)all the assets and liabilities of the trustee become the assets and liabilities of the transferee; and

(e)if paragraph (c) does not apply—the assets and liabilities of the trustee mentioned in section 73(1)(a)(ii) become the assets and liabilities of the transferee.

s 71 ins 2011 No. 26 s 165

amd 2019 No. 7 s 305

72Application for approval to transfer

(1)The trustee of the Torres Strait Islander land may apply to the Minister for an approval to transfer all or a part of the land.

(2)The application must—

(a)be in the approved form; and

(b)if the transferee is a land trust—be accompanied by evidence satisfactory to the Minister of each matter mentioned in section 73(1)(a) or (b) that applies to the transfer; and

(c)if the transferee is a CATSI corporation—be accompanied by evidence satisfactory to the Minister of each matter mentioned in section 73(1)(c) or (d) that applies to the transfer.

s 72 ins 2011 No. 26 s 165

amd 2019 No. 7 s 306

73Minister’s approval to transfer

(1)The Minister may give an approval to transfer the land only if satisfied—

(a)at least 75% of the transferor’s members present at a general meeting of the transferor, agree to the transfer of—

(i)the land; and

(ii)the assets and liabilities of the transferor that will become the assets and liabilities of the transferee; and

(b)if the transferee is a land trust—at least 75% of the transferee’s members present at a general meeting of the transferee, agree to the transfer of—

(i)the land; and

(ii)the assets and liabilities of the transferor that will become the assets and liabilities of the transferee; and

(c)if the transferee is a CATSI corporation—

(i)the transferee agrees to the transfer; and

(ii)the transferee is qualified to hold the land; and

(d)if the transferee is a CATSI corporation that is a registered native title body corporate—

(i)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land and the CATSI corporation is the registered native title body corporate for the determination; or

(ii)a determination has not been made under the Commonwealth Native Title Act that native title exists in relation to all or a part of the land, but it is appropriate in all the circumstances for the land to be transferred to the CATSI corporation; and

Examples of when it is appropriate for the land to be transferred to the CATSI corporation—

1The transfer to the CATSI corporation is supported by consultation with Torres Strait Islanders particularly concerned with the land.

2The land is within the external boundaries of an area of land the subject of a native title determination and the CATSI corporation is the registered native title body corporate for the determination.

3An ILUA has been entered into for the land and the CATSI corporation is nominated in the ILUA as the proposed transferee for the land under this Act.

4Anthropological research supports the CATSI corporation as being the appropriate transferee.

(e)it is appropriate in the circumstances to transfer the land.

(2)If the Minister gives an approval to transfer the land, the chief executive must notify the approval by gazette notice.

(3)The gazette notice must—

(a)include all of the following—

(i)the name of the transferor;

(ii)a description of the land being transferred;

(iii)details of each registered interest in the land being transferred;

(iv)a description of all Torres Strait Islander land, if any, that will be held by the transferor after the transfer;

(v)the name of the transferee;

(vi)a description of all Torres Strait Islander land that will be held by the transferee after the transfer; and

(b)if the transferor is a land trust that is dissolved under section 71(2)(d)(i) because of the transfer—state the land trust will be dissolved.

(4)In this section—

description, in relation to land, means the description of the land as shown in the freehold land register.

registered interest means an interest registered under the Land Title Act.

s 73 ins 2011 No. 26 s 165

amd 2019 No. 7 s 307

74Effect of gazette notice about transfer

On publication of the gazette notice the Torres Strait Islander land proposed to be transferred may be transferred to the transferee.

s 74 ins 2011 No. 26 s 165

pt 7 div 4 sdiv 2 hdg ins 2011 No. 26 s 165

75Application of sdiv 2

(1)This subdivision applies to Torres Strait Islander land held by a CATSI corporation.

(2)However, this subdivision does not apply to a transfer of Torres Strait Islander land from a registered native title body corporate (the original body corporate) to another registered native title body corporate that, under the Commonwealth Native Title Act, replaces the original body corporate.

s 75 amd 1993 No. 85 s 169F (amd 1994 No. 61 s 2 sch 2); 2003 No. 77 s 123; 2008 No. 29 s 73 sch

sub 2011 No. 26 s 165

76Transfer of Torres Strait Islander land

(1)The trustee of the Torres Strait Islander land (the transferor) may transfer all or a part of the land only—

(a)with the Minister’s written approval; and

(b)to another CATSI corporation that is qualified to hold the land (the transferee).

(2)The transferee holds the land for—

(a)the native title holders of the land, if—

(i)the transferee is a registered native title body corporate; and

(ii)the transferor and the transferee agree it is to be held for the native title holders; or

(b)otherwise—the benefit of the Torres Strait Islanders particularly concerned with the land and their ancestors and descendants.

s 76 ins 2011 No. 26 s 165

amd 2019 No. 7 s 308

77Application for approval to transfer

(1)The trustee of the Torres Strait Islander land may apply to the Minister for an approval to transfer all or a part of the land.

(2)The application must be in the approved form.

s 77 ins 2011 No. 26 s 165

78Minister’s approval to transfer

(1)The Minister may give an approval to transfer the land only if satisfied—

(a)the transferee agrees to the transfer; and

(b)the transferee is qualified to hold the land; and

(c)if the transferee is a CATSI corporation that is a registered native title body corporate—

(i)under the Commonwealth Native Title Act, a determination has been made that native title exists in relation to all or a part of the land and the CATSI corporation is the registered native title body corporate for the determination; or

(ii)a determination has not been made under the Commonwealth Native Title Act that native title exists in relation to all or a part of the land, but it is appropriate in all the circumstances for the land to be transferred to the CATSI corporation; and

Examples of when it is appropriate for the land to be transferred to the CATSI corporation—

1The transfer to the CATSI corporation is supported by consultation with Torres Strait Islanders particularly concerned with the land.

2The land is within the external boundaries of an area of land the subject of a native title determination and the CATSI corporation is the registered native title body corporate for the determination.

3An ILUA has been entered into for the land and the CATSI corporation is nominated in the ILUA as the proposed transferee for the land under this Act.

4Anthropological research supports the CATSI corporation as being the appropriate transferee.

(d)it is appropriate in the circumstances to transfer the land.

(2)If the Minister gives an approval to transfer the land, the chief executive must notify the approval by gazette notice.

(3)The gazette notice must include all of the following—

(a)the name of the transferor;

(b)a description of the land being transferred;

(c)the name of the transferee.

(4)In this section—

description, in relation to land, means the description of the land as shown in the freehold land register.

s 78 ins 2011 No. 26 s 165

amd 2019 No. 7 s 309

79Effect of gazette notice about transfer

On publication of the gazette notice the Torres Strait Islander land proposed to be transferred may be transferred to the transferee.

s 79 ins 2011 No. 26 s 165

pt 7 div 4 sdiv 3 hdg ins 2011 No. 26 s 165

80Exemption

If a trustee of Torres Strait Islander land transfers all or a part of the land under this division, no fee or charge is payable by the trustee or the entity to whom the land is transferred in relation to lodgement and registration of any instrument in the land registry to give effect to the transfer.

s 80 amd 2003 No. 77 s 124; 2008 No. 29 s 73 sch

sub 2011 No. 26 s 165

pt 7 div 5 hdg ins 2011 No. 26 s 165

81Trustee to advise chief executive of change to description of land

If a trustee deals with Torres Strait Islander land held by the trustee in a way that changes the description of the land as shown in the freehold land register, the trustee must as soon as practicable after the dealing happens give the chief executive notice of the change.

s 81 sub 2011 No. 26 s 165

amd 2013 No. 23 s 352 sch 1 pt 1

82Particular dealings in Torres Strait Islander land void

(1)A grant, transfer or other creation of an interest in Torres Strait Islander land in contravention of this part or part 2A or 8 is void.

(2)Subsection (1) does not apply to a registered interest.

s 82 ins 2011 No. 26 s 165

amd 2014 No. 45 s 40

83Provision about resumption of Torres Strait Islander land etc.

(1)An interest in Torres Strait Islander land can not be resumed, taken or otherwise compulsorily acquired, sold or dealt with other than under the Acquisition Act by a constructing authority.

(2)However, an interest in Torres Strait Islander land may be taken under the Acquisition Act only for a relevant purpose.

(3)To remove any doubt, it is declared that, for taking an interest in Torres Strait Islander land under the Acquisition Act, the Torres Strait Islander land is land as defined in that Act.

(4)Subsection (1) has effect despite any other Act (whether enacted before or after the enactment of this section).

(5)In this section—

relevant purpose means any purpose for which land may be taken under the Acquisition Act by a constructing authority, other than a purpose under—

(a)the Geothermal Energy Act 2010; or

(b)the Greenhouse Gas Storage Act 2009; or

(c)the Petroleum and Gas (Production and Safety) Act 2004; or

(d)the State Development and Public Works Organisation Act 1971.

s 83 ins 2011 No. 26 s 165

pt 8 hdg ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

pt 8 div 1 hdg ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

84Definitions for pt 8

In this part—

home ownership lease see sections 85(2) and 86(2).

lessee means—

(a)for a part 8 lease granted under a townsite lease—the sublessee under the townsite lease; or

(b)for another part 8 lease—the lessee under the lease.

lessor means—

(a)for a part 8 lease granted under a townsite lease—the lessee of the townsite lease; or

(b)for another part 8 lease—the trustee of the lease land.

part 8 lease means a lease granted under this part.

townsite lease see section 85(3).

s 84 amd 2008 No. 29 s 73 sch

sub 2011 No. 26 s 165; 2014 No. 45 s 41

pt 8 div 2 hdg ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

pt 8 div 2 sdiv 1 hdg ins 2011 No. 26 s 165

om 2014 No. 45 s 41

pt 8 div 2 sdiv 1hdg ins 2011 No. 26 s 165

om 2014 No. 45 s 41

85Grant of lease by trustee of Torres Strait Islander land

(1)The trustee of Torres Strait Islander land may grant a lease over all or a part of the land for not more than 99 years.

(2)Without limiting subsection (1), the trustee of Torres Strait Islander land may grant a lease (a home ownership lease) over all or a part of the land for 99 years to any of the following for residential use—

(a)a Torres Strait Islander;

(b)a person who is not a Torres Strait Islander if—

(i)the person is the spouse or former spouse of—

(A)a person mentioned in paragraph (a); or

(B)a person mentioned in paragraph (a) who is deceased; or

(ii)the lease supports another part 8 lease granted to the person.

(3)The trustee of Torres Strait Islander land may grant a perpetual lease (a townsite lease) over all or a part of the land if—

(a)the land or part is township land; and

(b)the lease is granted to a local government.

s 85 sub 2011 No. 26 s 165; 2014 No. 45 s 41

86Grant of lease by lessee of townsite lease

(1)The lessee of a townsite lease may grant a lease for not more than 99 years over all or a part of the lease land.

(2)Without limiting subsection (1), the lessee of a townsite lease may grant a lease (also a home ownership lease) over all or a part of the lease land for 99 years to any of the following for residential use—

(a)a Torres Strait Islander;

(b)a person who is not a Torres Strait Islander if—

(i)the person is the spouse or former spouse of—

(A)a person mentioned in paragraph (a); or

(B)a person mentioned in paragraph (a) who is deceased; or

(ii)the lease supports another part 8 lease granted to the person.

s 86 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

pt 8 div 3 hdg ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

pt 8 div 3 sdiv 1hdg ins 2011 No. 26 s 165

om 2014 No. 45 s 41

pt 8 div 3 sdiv 2 hdg ins 2011 No. 26 s 165

om 2014 No. 45 s 41

pt 8 div 3 sdiv 3 hdg ins 2011 No. 26 s 165

om 2014 No. 45 s 41

pt 8 div 3 sdiv 4 hdg ins 2011 No. 26 s 165

om 2014 No. 45 s 41

87General conditions of particular leases

(1)A part 8 lease, other than a townsite lease, may include any of the following conditions—

(a)a stated standard terms document under the Land Title Act forms part of the lease;

(b)the lease must not be transferred without the lessor’s prior written consent;

(c)an interest under the lease, other than a mortgage of the lease, must not be created without the lessor’s prior written consent.

(2)If a part 8 lease includes a condition mentioned in subsection (1)(b) or (c), the lessor must not unreasonably withhold consent to the transfer or creation of an interest under the lease.

(3)A part 8 lease may be mortgaged without the consent of the lessor.

(4)Subject to subsection (3), this section does not limit the conditions that may be imposed on a part 8 lease.

s 87 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

88Option to renew particular lease

(1)A part 8 lease granted under section 85(1) or 86(1) may include an option to renew the lease.

(2)The term of the renewed lease must not be more than the initial term of the lease.

s 88 amd 2008 No. 29 s 73 sch

sub 2011 No. 26 s 165; 2014 No. 45 s 41

89Transfer of lease

A part 8 lease must not be transferred to a person who, under this Act, would not be entitled to a grant of the lease.

s 89 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

90Lease etc. to be registered

(1)The lessee of a part 8 lease must register the lease and an amendment, surrender or transfer of the lease.

(2)Despite the Land Title Act, section 65(2), an instrument of lease for Torres Strait Islander land must include a plan of survey identifying the lease land.

(3)Subsection (2) does not apply to a lease entered into only in relation to an area completely within a building.

s 90 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

pt 8 div 4 hdg ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

pt 8 div 4 sdiv 1 hdg ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

91General conditions and requirements

(1)A home ownership lease is subject to all of the following conditions—

(a)the annual rental under the lease is the amount, of not more than $1, decided by the lessor;

(b)the consideration payable for the lease must include, as a lump sum payment, an amount equal to the value of the lease land as decided by the lessor using at least 1 of the following—

(i)a valuation methodology decided by the chief executive;

(ii)the benchmark purchase price, as prescribed by regulation, for land in the part of the State in which the lease land is situated;

(c)the lease land must be used primarily for residential use;

(d)if a dwelling for residential use is not situated on the lease land when the lease is granted—the lessee must ensure a dwelling for residential use is built on the land within 8 years after the lease is granted.

(2)A lessor may grant a home ownership lease only if the amount equal to the value of the lease land decided under subsection (1)(b) has been paid to the lessor.

(3)The chief executive—

(a)must, if asked, give a person a copy of the valuation methodology mentioned in subsection (1)(b)(i); and

(b)may make the valuation methodology available for inspection on the department’s website.

(4)However, the value of the lease land under subsection (1)(b) must be taken to be nil if—

(a)the lessee is the recipient of a hardship certificate under the new Land Holding Act; and

(b)the certificate has not previously been used under this section, whether or not the land identified in the certificate is the same as the lease land.

s 91 ins 1993 No. 85 s 169G (amd 1994 No. 61 s 2 sch 2)

sub 2011 No. 26 s 165; 2014 No. 45 s 41

92Additional requirement if dwelling situated on land

(1)This section applies if—

(a)a lessor proposes to grant a home ownership lease; and

(b)a dwelling is situated on the lease land.

(2)The lessor must give the housing chief executive notice of the lessor’s intention to grant the lease.

(3)Within 28 days after receiving the notice, the housing chief executive must give the lessor a notice stating whether or not the dwelling is a social housing dwelling.

(4)The lessor must not grant the lease before receiving the notice under subsection (3).

(5)This section and section 93 do not limit section 91.

s 92 sub 2011 No. 26 s 165; 2014 No. 45 s 41

93Additional conditions and requirements for social housing dwelling

(1)This section applies if the notice under section 92(3) states the dwelling is a social housing dwelling.

(2)Before the lease is granted, the lessor must decide the price of the dwelling—

(a)by agreement with the housing chief executive; or

(b)by using a methodology agreed between the lessor and the housing chief executive.

(3)The consideration payable for the lease must include, as a lump sum payment, an amount equal to the price of the dwelling decided under subsection (2).

(4)The lessor may grant the lease only if—

(a)the housing chief executive has given written approval that the grant may include the sale of the dwelling; and

(b)the amount equal to the price of the dwelling decided under subsection (2) has been paid to the lessor.

(5)In considering whether to give the approval mentioned in subsection (4)(a), the housing chief executive must have regard to whether it would be more appropriate in the circumstances for the dwelling to continue to be social housing.

(6)If the lessor grants the lease, and within 28 days after the lease is registered, the lessor must give the housing chief executive—

(a)a notice stating—

(i)the day the lease was registered; and

(ii)the names of the parties to the lease; and

(b)evidence showing the consideration for the lease under subsection (3) and section 91(1)(b) has been paid to the lessor.

Note—

An amount paid under subsection (3) for the price of a dwelling must be used by the lessor as required under section 192.

s 93 sub 2011 No. 26 s 165; 2014 No. 45 s 41

amd 2019 No. 7 s 310

pt 8 div 4 sdiv 2 hdg ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

94Grounds for forfeiture

A home ownership lease may be forfeited only if—

(a)the lessee breaches either of the following conditions and fails to remedy the breach within 6 months after receiving notice of the breach from the lessor—

(i)a condition of the lease mentioned in section 91(1)(d);

(ii)another condition if the lessor reasonably considers a breach of the condition is of a serious nature and warrants forfeiture of the lease; or

(b)the lessee acquired the lease by fraud.

s 94 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

95Referral to Land Court for forfeiture

(1)Before a home ownership lease is forfeited, the lessor must refer the proposed forfeiture to the Land Court to decide whether the lease may be forfeited.

(2)At least 28 days before the lessor refers the proposed forfeiture to the Land Court, the lessor must give notice of the proposed referral to the lessee and any mortgagee of the lease.

(3)The notice must state the grounds on which the lessor considers the lease may be forfeited.

(4)If the lessor refers the proposed forfeiture to the Land Court, the lessor must file a copy of the notice in the court.

(5)In deciding whether the lease may be forfeited, the Land Court must have regard to—

(a)the grounds stated in the notice under subsection (3); and

(b)if the proposed forfeiture is because of a breach of a condition of the lease—whether the court considers the breach is of a serious nature and warrants forfeiture of the lease.

(6)A decision by the Land Court that the lease may be forfeited may be subject to conditions.

s 95 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

96Lessor’s options if Land Court decides lease may be forfeited

(1)If the Land Court decides a home ownership lease may be forfeited, the lessor may—

(a)if the proposed forfeiture is subject to conditions decided by the court—forfeit the lease under this subdivision if the conditions of forfeiture are satisfied; or

(b)otherwise—forfeit the lease under this subdivision.

(2)If the proposed forfeiture is because of a breach of a lease condition, the lessor may decide not to forfeit the lease and instead allow the lease to continue subject to the lease being amended to include conditions agreed between the lessor and the lessee.

s 96 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

97Notice and effect of forfeiture

(1)If the lessor forfeits a home ownership lease, the lessor must, within 60 days after the Land Court makes its decision about forfeiture of the lease, give notice that the lease is forfeited to—

(a)the lessee and any mortgagee of the lease; and

(b)the registrar of titles.

(2)On receiving the notice, the registrar must record the forfeiture of the lease in the appropriate register.

(3)The forfeiture of the lease takes effect on the day the registrar acts under subsection (2).

(4)On forfeiture of the lease—

(a)the lease ends; and

(b)the lessee is divested of any interest in the lease; and

(c)any person occupying the lease land must immediately vacate the land.

s 97 sub 2011 No. 26 s 165

amd 2013 No. 2 s 156

sub 2014 No. 45 s 41

98Extension of term of lease if proposed forfeiture

(1)This section applies to a home ownership lease if—

(a)a proposed forfeiture of the lease has been referred to the Land Court; and

(b)after the referral but before the Land Court decides on the matter, the term of the lease would, but for subsection (2), end.

(2)The term of the lease is taken to continue until—

(a)if the lease is forfeited—the forfeiture of the lease takes effect as mentioned in section 97(3); or

(b)otherwise—the end of 60 days after the Land Court makes its decision.

(3)Subsection (2) applies to the lease despite the provisions of the lease and any other provision of this Act.

s 98 amd 1993 No. 85 s 170

sub 2011 No. 26 s 165; 2014 No. 45 s 41

pt 8 div 4 sdiv 3 hdg ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

99Application to renew lease

(1)The lessee under a home ownership lease may apply in writing to the lessor to renew the lease.

(2)The application must—

(a)state the name of the lessee; and

(b)include information to identify the lease.

s 99 amd 1992 No. 36 s 1 sch 2

sub 2011 No. 26 s 165; 2014 No. 45 s 41

100Notice of expiry of lease

(1)This section applies if the lessee under a home ownership lease has not, under section 99, applied for renewal of the lease at least 2 years before the term of the lease ends.

(2)At least 1 year before the term of the lease ends, the lessor must give the lessee notice stating—

(a)the day the term of the lease ends; and

(b)that the lessee may apply under this subdivision for renewal of the lease; and

(c)how the lessee may apply.

s 100 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

101Lessor to consider and decide application

Within 6 months after an application is made under section 99, the lessor must consider the application and decide to renew or not to renew the home ownership lease.

s 101 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

102Decision to renew lease

(1)If the lessor decides to renew the home ownership lease, the lessor must give the lessee—

(a)notice of the decision; and

(b)a copy of the renewed lease.

(2)The renewed lease—

(a)has effect immediately after the lease it replaces (the replaced lease) ends; and

(b)is subject to all the conditions to which the replaced lease was subject immediately before it ended.

(3)No amount is payable under section 91(1)(b) for the renewed lease.

s 102 amd 2008 No. 29 s 73 sch

sub 2011 No. 26 s 165; 2014 No. 45 s 41

103Lessor may decide not to renew lease

The lessor may decide not to renew the home ownership lease only if the lessor is reasonably satisfied—

(a)the lease land is not being used primarily for residential use; or

(b)the lessee acquired the lease by fraud.

s 103 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

104Notice about decision not to renew lease

If the lessor decides not to renew the home ownership lease, the lessor must give the lessee an information notice for the decision.

s 104 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

105Extension of term of lease if application for renewal

(1)This section applies to a home ownership lease if—

(a)the lessee has applied to renew the lease under section 99; and

(b)before the lessor decides the application, the term of the lease would, but for subsection (2), end.

(2)The term of the lease is taken to continue until notice of the lessor’s decision is given to the lessee under this subdivision.

(3)Subsection (2) applies to the lease despite the provisions of the lease and any other provision of this Act.

s 105 sub 2011 No. 26 s 165; 2014 No. 45 s 41

pt 8 div 4 sdiv 4 hdg ins 2014 No. 45 s 41

106Right to remove improvements if lease forfeited or not renewed

(1)If the lessor forfeits or decides not to renew a home ownership lease, the lessor must allow the lessee to remove the lessee’s improvements on the lease land within a reasonable period of at least 28 days decided by the lessor.

(2)If the improvements are not removed within the period, they become the property of the lessor.

s 106 sub 2011 No. 26 s 165; 2014 No. 45 s 41

107Payment by lessor if lease forfeited or not renewed

(1)If the lessor forfeits or decides not to renew a home ownership lease, the lessor must pay to the person who was the lessee the amount decided by the lessor under subsection (2) (the required amount).

(2)The required amount is the amount equal to the combined value of the following (the maximum amount) less any amounts deducted from the maximum amount under section 109—

(a)the value of the lease land on the day the lease is forfeited or ends;

(b)the value of the lessee’s improvements on the land that become the property of the lessor.

(3)The value of the lease land must be the amount decided by the lessor using the valuation methodology mentioned in section 91(1)(b)(i).

(4)The value of any improvements on the lease land must be decided by the lessor based on the market value of the improvements in a sale of a lease of the same term and tenure as the forfeited or non-renewed lease.

(5)The lessor must decide the required amount as soon as practicable after giving the person notice that the lease is forfeited or not renewed.

(6)On deciding the required amount, the lessor must give the person an information notice for the decision.

(7)This section is subject to section 108.

s 107 ins 2011 No. 26 s 165

amd 2013 No. 2 s 157

sub 2014 No. 45 s 41

108Unclaimed amount

If the lessor can not find the person entitled to receive the required amount, or the person does not collect the amount from the lessor within 9 years after the day the lease is forfeited or not renewed, the required amount is forfeited to the lessor.

s 108 ins 2011 No. 26 s 165

amd 2013 No. 23 s 352 sch 1 pt 1

sub 2014 No. 45 s 41

109Amount owing to lessor or mortgagee

If the lessor forfeits or decides not to renew a home ownership lease, the lessor may deduct the following amounts from the maximum amount—

(a)an amount in payment of all costs properly incurred by the lessor in forfeiting or not renewing the lease;

(b)an amount in payment of expenses incurred by the lessor to rectify damage caused to the lease land by the person who was the lessee;

(c)any amount owing to the lessor by the person under the lease;

(d)any amount owing to a mortgagee of the lease by the person under a mortgage of the lease.

s 109 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

110Payment of amount to mortgagee in discharge of mortgage

(1)This section applies if—

(a)the lessor forfeits or decides not to renew a home ownership lease; and

(b)under a mortgage of the lease, an amount is owing to a mortgagee of the lease by the person who was the lessee.

(2)The lessor must pay to the mortgagee—

(a)if the amount that may be deducted from the maximum amount under section 109(d) is less than the difference between the maximum amount and the amounts deducted under section 109(a), (b) and (c)—the amount that may be deducted from the maximum amount under section 109(d); or

(b)otherwise—the amount equal to the difference between the maximum amount and the amounts deducted under section 109(a), (b) and (c).

(3)The lessor must pay the amount payable under subsection (2) to the mortgagee—

(a)if no appeal is made to the Land Court about the required amount payable to the person who was the lessee—within 28 days after the time for making an appeal ends; or

(b)if an appeal is made to the Land Court about the required amount payable to the person who was the lessee—within 28 days after the appeal is finally decided.

(4)If the lessor pays an amount to the mortgagee in relation to a mortgage of the lease, the mortgagee must use the amount in discharge of the mortgage.

s 110 amd 2002 No. 74 s 90 sch

sub 2011 No. 26 s 165; 2014 No. 45 s 41

pt 8 div 4 sdiv 5 hdg ins 2014 No. 45 s 41

111Exemption from fees and charges

(1)This section applies to an instrument of lease for a home ownership lease.

(2)No fee or charge is payable for—

(a)the lodgement and registration of the instrument in the land registry; or

(b)the provision by the registrar of titles of other services for the lodgement and registration of the instrument.

s 111 ins 2011 No. 26 s 165

amd 2013 No. 2 s 158

sub 2014 No. 45 s 41

112Beneficiary to home ownership lease

(1)A person who is beneficially entitled under a will to a home ownership lease may ask the lessor—

(a)to give the person a notice stating whether or not the person is entitled to a grant of the lease under this Act; and

(b)if, under a condition of the lease, the lease can not be transferred without the lessor’s written consent—for the lessor’s written consent to the transfer of the lease.

Note—

Under section 87, a home ownership lease may include a condition that it must not be transferred without the lessor’s prior written consent.

(2)The lessor must comply with a request under subsection (1) as soon as practicable after receiving the request.

s 112 sub 2011 No. 26 s 165

amd 2013 No. 2 s 159

sub 2014 No. 45 s 41

pt 8 div 5 hdg ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

pt 8 div 5 sdiv 1 hdg ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

113Minister’s consent for grant of townsite lease

(1)A townsite lease may be granted only with the Minister’s prior written consent.

(2)The Minister may consent to the grant of a townsite lease only if—

(a)the lease is over an entire lot as shown in the appropriate register; and

(b)the Minister is reasonably satisfied that any existing interests in the proposed lease land are not inconsistent with the lease.

s 113 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

pt 8 div 5 sdiv 2 hdg ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

114General requirements for Minister’s consent

(1)A person seeking the Minister’s prior written consent to the grant of a townsite lease must give the Minister the information or documents reasonably required by the Minister to show—

(a)the purpose of the lease; and

(b)the grant of the lease is for the benefit of persons for whom the trustee holds the lease land; and

(c)the grant of the lease—

(i)will facilitate the continued operation of a township on the lease land; and

(ii)will not prevent residents of the township land from continuing to live on and access the land, or from obtaining tenure over the land under this Act.

(2)In considering whether to give the consent, the Minister—

(a)must have regard to the information or documents given to the Minister under subsection (1); and

(b)may have regard to other information the Minister reasonably considers relevant to the proposed lease.

(3)Also, before giving the consent, the Minister must be reasonably satisfied—

(a)the Torres Strait Islanders particularly concerned with the lease land are generally in agreement with the grant of the lease; and

(b)the grant of the lease—

(i)will facilitate the continued operation of a township on the lease land; and

(ii)will not prevent residents of the township land from continuing to live on and access the land, or from obtaining tenure over the land under this Act.

s 114 sub 2011 No. 26 s 165

amd 2013 No. 23 s 352 sch 1 pt 1

sub 2014 No. 45 s 41

pt 8 div 5 sdiv 3 hdg ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

115Transfer or amendment of townsite lease

(1)A townsite lease must not be transferred or amended without—

(a)the agreement of both the trustee and the lessee of the lease land; and

(b)the Minister’s prior written consent.

(2)A person seeking the Minister’s prior written consent to the transfer or amendment of a townsite lease must give the Minister the information or documents relevant to the proposed transfer or amendment reasonably required by the Minister.

(3)In considering whether to consent to the transfer of a townsite lease, the Minister must consider whether the proposed transferee is capable of complying with the conditions of the lease.

(4)The Minister may consent to the amendment of a townsite lease only if reasonably satisfied—

(a)the amendment does not significantly change the conditions of the townsite lease; and

(b)the amendment will not diminish the purpose of the lease.

(5)A townsite lease must not be transferred to a person who, under this Act, would not be entitled to a grant of the lease.

s 115 ins 2011 No. 26 s 165

amd 2013 No. 23 s 352 sch 1 pt 1

sub 2014 No. 45 s 41

116Surrender of townsite lease

A townsite lease must not be surrendered without the Minister’s prior written consent.

s 116 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

117No forfeiture of townsite lease

A townsite lease can not be forfeited.

s 117 ins 2011 No. 26 s 165

amd 2013 No. 23 s 352 sch 1 pt 1

sub 2014 No. 45 s 41

pt 8 div 5 sdiv 4 hdg ins 2014 No. 45 s 41

118Lessee of townsite lease taken to be lessor of existing leases

(1)Subsection (2) applies if a townsite lease is granted over Torres Strait Islander land that is, immediately before the grant of the townsite lease, the subject of a following lease (each a continued lease)—

(a)a 1985 Act granted lease or a new Act granted lease under the new Land Holding Act;

(b)a lease under the Land Act;

(c)a trustee (Torres Strait Islander) lease.

(2)On the grant of the townsite lease—

(a)the continued lease continues in force and is taken to be—

(i)if the continued lease is primarily for residential use—a home ownership lease for the same term for which the continued lease was granted; or

(ii)otherwise—a lease granted under section 86(1); and

(b)the lessee of the townsite lease is substituted for the lessor as a party to the continued lease.

Note—

Under section 41(2), the trustee of the Torres Strait Islander land is the lessor of the continued lease.

(3)Section 41(3) applies to the continued lease as if the reference in that subsection to the trustee of the land were a reference to the lessee of the townsite lease.

s 118 ins 2011 No. 26 s 165

sub 2014 No. 45 s 41

pt 9 hdg sub 2011 No. 26 s 165

pt 9 div 1 hdg (prev located in orig pt 5) om 2011 No. 26 s 165

pt 9 div 2 hdg (prev located in orig pt 5) om 2011 No. 26 s 165

pt 9 div 3 hdg (prev located in orig pt 5) om 2011 No. 26 s 165

pt 9 div 4 hdg (prev located in orig pt 5) om 2011 No. 26 s 165

pt 9 div 5 hdg (prev located in orig pt 5) sub 1992 No. 20 s 159 sch 2

om 2011 No. 26 s 165

134When agreement of Torres Strait Islanders is given

If this Act provides that Torres Strait Islanders be generally in agreement with a grant, consent or agreement about Torres Strait Islander land, the agreement of the Torres Strait Islanders is taken to have been given when—

(a)if there is a particular process of decision-making that, under the Island custom of the Torres Strait Islanders, must be complied with for decisions of that kind—the decision was made under the process; or

(b)otherwise—the decision was made under the process of decision-making agreed to and adopted by the Torres Strait Islanders for the decision or for decisions of that kind.

s 134 sub 2011 No. 26 s 165

135Decision-making by trustee

(1)This section applies if this Act provides that the trustee of Torres Strait Islander land is required to make a decision about the land, including, for example, a decision about any of the following—

(a)the way in which the trustee will consult about the making of a freehold instrument for the land;

(b)whether to grant an interest in the land;

(c)whether to consent to the creation of a mining interest in the land;

(d)whether to enter into an agreement about the land.

(2)The trustee must—

(a)have regard to—

(i)if the Torres Strait Islanders for whom the trustee holds the land have agreed on a decision-making process for decisions of that kind—the process; or

(ii)if subparagraph (i) does not apply—any Island custom, for decisions of that kind, of the Torres Strait Islanders for whom the trustee holds the land; or

(b)if there is no decision-making process mentioned in paragraph (a)(i) or relevant Island custom—make the decision under a process of decision-making agreed to and adopted by the trustee for the decision or for decisions of that kind.

s 135 sub 1992 No. 20 s 159 sch 2

amd 1993 No. 85 s 170B (amd 1994 No. 61 s 2 sch 2); 1995 No. 57 s 4 sch 1

sub 2011 No. 26 s 165

amd 2014 No. 45 s 42

pt 10 hdg ins 2008 No. 29 s 87

sub 2011 No. 26 s 166

pt 10 div 1 hdg ins 2011 No. 26 s 166

136Definitions for pt 10

In this part—

lease means a part 8 lease, other than a townsite lease.

s 136 def lease sub 2014 No. 45 s 43

lessor means—

(a)for a lease granted under a townsite lease—the lessee of the townsite lease; or

(b)for another lease—the trustee of the lease land.

s 136 def lessor sub 2014 No. 45 s 43

s 136 ins 2011 No. 26 s 166

137Application of pt 10

If, in relation to the mortgaging of a lease over Torres Strait Islander land, there is an inconsistency between a provision of this part and the Land Title Act, part 6, division 3, or the Property Law Act 1974, the provision of this part prevails to the extent of the inconsistency.

s 137 ins 2008 No. 29 s 87

sub 2011 No. 26 s 166

pt 10 div 2 hdg ins 2011 No. 26 s 166

138Provisions about entering into possession, and selling, lease

(1)This section applies if a mortgagee enters into possession of a lease granted over Torres Strait Islander land.

(2)The mortgagee must give the lessor for the lease notice of the fact within 28 days after entering into possession.

(3)The mortgagee must arrange to sell the lease within—

(a)4 years after entering into possession of the lease; or

(b)the longer period agreed in writing between the mortgagee and lessor.

(4)For subsection (3)(b)—

(a)the period mentioned in subsection (3)(a) may be extended or further extended for not more than 2 years at a time; and

(b)an extension or further extension of the period must be agreed in writing before the period or further extended period would otherwise have ended.

(5)In considering whether to agree to an extension or further extension, the lessor must have regard to the measures the mortgagee has already taken to sell the lease.

(6)If the mortgagee does not sell the lease within the period mentioned in subsection (3)(a), the lessor may sell the lease.

(7)The mortgagee or lessor may sell the lease only to a person who, under this Act, would be entitled to a grant of the lease.

(8)The lessor must not sell the lease for less than—

(a)the amount owing to the mortgagee by the lessee under the mortgage on the day the lease is sold; or

(b)if the lessor and the mortgagee agree the lease may be sold for an amount less than the amount mentioned in paragraph (a)—the agreed amount.

(9)In this section—

lessee means—

(a)for a lease granted under a townsite lease—the lessee under the lease; or

(b)for another lease—the lessee under the lease.

s 138 ins 2008 No. 29 s 87

sub 2011 No. 26 s 166

amd 2013 No. 23 s 352 sch 1 pt 1; 2014 No. 45 s 44

139How lessor deals with proceeds of sale

(1)This section applies if, under section 138, a lessor sells a mortgaged lease.

(2)The lessor must apply the proceeds of the sale, under the Property Law Act 1974, as if the lease were sold by the mortgagee and the amount of the sale were received by the mortgagee.

(3)However, in applying the proceeds of the sale, the lessor must firstly apply the proceeds to the payment of all costs, charges and expenses properly incurred by the lessor for the sale or any attempted sale.

s 139 ins 2008 No. 29 s 87

sub 2011 No. 26 s 166

pt 11 hdg ins 2008 No. 29 s 87

pt 11 div 1 hdg ins 2008 No. 29 s 87

140Definitions for pt 11

In this part—

Torres Strait Islander trust land means—

(a)land subject to a deed of grant in trust granted for the benefit of Torres Strait Islanders or for the purpose of a Torres Strait Islander reserve under the repealed Land Act 1962; or

(b)land reserved and set apart under the repealed Land Act 1962 for a Torres Strait Islander reserve or for the benefit of Torres Strait Islanders; or

(c)land subject to a deed of grant in trust granted for the benefit of Torres Strait Islanders under the Land Act; or

(d)land dedicated under the Land Act as a reserve for Torres Strait Islander purposes or the provision of services beneficial to Torres Strait Islanders particularly concerned with the land.

s 140 def Torres Strait Islander trust land amd 2011 No. 26 s 167 (1)

trustee ...

s 140 def trustee om 2014 No. 45 s 58 sch 1 pt 1

trustee (Torres Strait Islander) lease means a lease of Torres Strait Islander trust land granted under—

(a)part 8 as applied under section 142(2); or

(b)the Land Act, section 57 before the commencement of this part.

s 140 def trustee (Torres Strait Islander) lease amd 2011 No. 26 s 167 (2)

s 140 ins 2008 No. 29 s 87

141Relationship with Land Act

(1)The following provisions of the Land Act, chapter 3, part 1, division 7 do not apply to Torres Strait Islander trust land—

(a)sections 57 to 59;

(b)section 61, to the extent it relates to a lease or sublease of the land;

(c)section 63, to the extent it relates to a lease of the land;

(d)section 64;

(e)sections 65 and 66, to the extent they relate to a lease of the land.

(2)For the purposes of the Land Act, other than the provisions mentioned in subsection (1), a trustee (Torres Strait Islander) lease is taken to be a trustee lease under that Act.

s 141 ins 2008 No. 29 s 87

pt 11 div 2 hdg ins 2008 No. 29 s 87

142Trustee (Torres Strait Islander) leases

(1)A trustee of Torres Strait Islander trust land may lease all or a part of the land under part 8.

(2)For subsection (1), part 8 applies in relation to the leasing of Torres Strait Islander trust land—

(a)as if a reference in the part to Torres Strait Islander land were a reference to Torres Strait Islander trust land; and

(b)as if the reference in section 87(1)(a) to a stated standard terms document under the Land Title Act were a reference to a stated mandatory standard terms document under the Land Act.

(3)Also, for subsection (1), sections 85(2) and 86(2) apply in relation to the leasing of Torres Strait Islander trust land that is prescribed DOGIT land as if a reference in those sections to a Torres Strait Islander includes a reference to an Aboriginal person.

(4)The grant of a lease over Torres Strait Islander trust land in contravention of part 8 is void, unless the lease is registered.

(5)Subsection (4) applies despite any other Act.

s 142 ins 2008 No. 29 s 87

amd 2011 No. 26 s 168; 2013 No. 23 s 352 sch 1 pt 1; 2013 No. 2 s 160; 2014 No. 45 s 45

143Amending trustee (Torres Strait Islander) lease

(1)A document of amendment of a registered trustee (Torres Strait Islander) lease must not—

(a)increase or decrease the area leased; or

(b)add or remove a party to the lease; or

(c)be lodged after the lease’s term has ended.

(2)In this section—

term, of a trustee (Torres Strait Islander) lease, includes a period of possession under the lease because of—

(a)the renewal of the lease; or

(b)a registered document of amendment extending the term of the lease.

s 143 ins 2008 No. 29 s 87

amd 2011 No. 26 s 169

144Mortgage of trustee (Torres Strait Islander) lease

(1)Subject to subsection (2), a lessee of Torres Strait Islander trust land may, under the Land Act, chapter 6, part 4, division 4, mortgage a trustee (Torres Strait Islander) lease.

(2)For mortgaging a trustee (Torres Strait Islander) lease—

(a)the Land Act, chapter 6, part 4, division 4, applies—

(i)as if the reference in section 345(2) to the Minister were a reference to the trustee; and

(ii)as if section 346(1) provided that the mortgagee may offer the lease for sale by public auction or may sell the lease by private contract; and

(iii)as if the reference in section 346(3) to a person qualified under the Land Act to hold the lease were a reference to a person entitled under this Act to a grant of the lease; and

(iv)as if section 347 were omitted; and

(b)section 138 applies as if the reference in section 138(1) to Torres Strait Islander land were a reference to Torres Strait Islander trust land.

s 144 ins 2008 No. 29 s 87

145Surrender of trustee (Torres Strait Islander) lease

All or part of a trustee (Torres Strait Islander) lease or a sublease of a trustee (Torres Strait Islander) lease may be surrendered only if each registered mortgagee and registered sublessee of the interest being surrendered has given written agreement to the surrender.

s 145 ins 2008 No. 29 s 87

pt 12 hdg amd 2011 No. 26 s 189 sch

148Use of Torres Strait Islander land preserved

(1)If, on the day land becomes Torres Strait Islander land, the land or any part of the land is being occupied or used by the State or the Commonwealth, the State or Commonwealth is entitled to continue to occupy or use it for such period as the land, or that part of the land, is required by the State or Commonwealth.

(2)While the State or Commonwealth is entitled to the occupation or use of land under subsection (1), the improvements on the land are the property of the State or Commonwealth.

(3)If the chief executive becomes aware the occupation or use of land under subsection (1) is no longer required by the State or Commonwealth, the chief executive must give the trustee of the land notice of that fact.

(4)Despite subsection (1), if the State or Commonwealth intends to continue to occupy or use the land, the State or Commonwealth and the trustee of the land are to use their best endeavours to provide for the continued occupation and use of the land under an interest in, or in relation to, the land given by the trustee of the land.

(5)Subsection (1) ceases to apply to land if—

(a)it is subject to a home ownership lease; or

(b)the State or Commonwealth has a right to occupy or use the land under an interest in, or in relation to, the land given by the trustee of the land; or

(c)the trustee of the land receives a notice under subsection (3) for the land.

(6)Subsection (7) applies if the Torres Strait Islander land being occupied or used by the State or the Commonwealth is land that is the subject of a townsite lease.

(7)Subsections (3) to (5) apply as if a reference to the trustee of the land were a reference to the lessee of the townsite lease.

(8)For subsection (1) but without otherwise limiting the subsection, land is being occupied or used by the State or Commonwealth if, immediately before becoming Torres Strait Islander land, it was a reserve under the Land Act and the State or Commonwealth was the trustee of the reserve.

s 148 amd 2008 No. 29 s 88; 2011 No. 26 s 170; 2013 No. 2 s 154; 2013 No. 23 s 352 sch 1 pt 1; 2014 No. 45 s 47

149No rent payable

The State or Commonwealth is not liable to pay any amount in the nature of rent in relation to its occupation or use of land under section 148(1).

s 149 amd 2011 No. 26 s 171

150Access to land

(1)While the State or Commonwealth is entitled to the occupation or use of land under section 148, the officers, employees, agents and servants of the State or Commonwealth and their licensees and invitees are entitled, with or without vehicles, machinery, plant and equipment (of any description), to enter and cross Torres Strait Islander land for the purpose of gaining access to the land.

(2)A person mentioned in subsection (1) must only cross Torres Strait Islander land by—

(a)the routes that were commonly used before the land became Torres Strait Islander land; or

(b)other routes agreed on from time to time by the State or Commonwealth and the trustee of the land.

(3)The trustee of Torres Strait Islander land, other than a registered native title body corporate, must not agree on a route for subsection (2)(b) unless—

(a)the trustee has explained to the Torres Strait Islanders particularly concerned with the land the purpose and effect of the proposed route; and

(b)the Torres Strait Islanders are given adequate opportunity to express their views on, and are generally in agreement with, the proposed route.

(4)Contravention of subsection (3) does not invalidate an agreement made for the purposes of subsection (2)(b).

(5)If the Torres Strait Islander land being occupied or used by the State or the Commonwealth under section 148(1) is land that is the subject of a townsite lease or other registered interest (relevant land)—

(a)subsection (2) applies to the relevant land as if the reference to the trustee of the land were a reference to the lessee of the townsite lease or the person registered in the appropriate register as the holder of the other interest; and

(b)subsection (3) does not apply.

(6)Subsection (5) does not affect the operation of subsections (2) and (3) in relation to Torres Strait Islander land that is not relevant land.

s 150 amd 2008 No. 29 s 89; 2011 No. 26 s 172

151Application of Mineral Resources Act 1989

(1)To allay any doubt, it is declared that the Mineral Resources Act 1989 applies to transferable land as if it were a reserve within the meaning of that Act.

(2)Subject to subsection (3), the Mineral Resources Act 1989 applies to Torres Strait Islander land that is or was transferred land as if it were a reserve, and the trustee of the land were the owner of the land, within the meaning of that Act.

(3)Subsection (2) does not apply in relation to the Mineral Resources Act 1989, sections 316 and 317.

(4)The holder of a mining lease must, before making application for a mining lease under the Mineral Resources Act 1989, section 316 or a variation of a mining lease under section 317 of that Act, consult and endeavour to reach agreement with the Torres Strait Islanders particularly concerned with the land in relation to which the application is to be made about the route of the proposed access over the land.

(5)Subsection (4) applies in relation to Torres Strait Islander land held by a registered native title body corporate as if the reference in the subsection to Torres Strait Islanders particularly concerned with the land were a reference to the registered native title body corporate that holds the land.

s 151 amd 2008 No. 29 s 90; 2011 No. 26 s 173; 2019 No. 7 s 313 sch 1

152Royalties in relation to mining on Torres Strait Islander land

(1)This section applies if the State receives an amount (the royalty amount), by way of royalty under the Mineral Resources Act 1989, the Petroleum and Gas (Production and Safety) Act 2004 or the Geothermal Energy Act 2010, in relation to land that is Torres Strait Islander land.

(2)The trustee of the land is entitled to receive, out of money appropriated by the Parliament, the percentage prescribed for the purposes of this subsection of the total royalty amount received in a financial year and must apply the amount received for the benefit of the Torres Strait Islanders for whose benefit the trustee holds the land, particularly those that are affected by the activities to which the royalty amount relates.

s 152 amd 2004 No. 25 s 1040; 2011 No. 26 s 174; 2010 No. 31 s 575 sch 2 pt 4

pt 14 hdg sub 2011 No. 26 s 175

pt 14 div 1 hdg sub 2011 No. 26 s 175

153Composition of land trust

A land trust for an area of Torres Strait Islander land consists of all the members for the time being of the land trust.

s 153 sub 2011 No. 26 s 175

154Nature of land trust

(1)A land trust—

(a)is a body corporate with perpetual succession; and

(b)has a seal; and

(c)may sue and be sued in its corporate name.

(2)A land trust has all the powers of an individual and may, for example—

(a)acquire, hold and dispose of property; and

(b)borrow, receive and spend money; and

(c)employ staff, and engage consultants, necessary for the performance of its function.

(3)The land trust’s seal—

(a)is effective only if the land trust’s name is inscribed on the seal in legible characters, but the seal may include other words; and

(b)is to be kept by a person who is authorised by the land trust for that purpose; and

(c)may be attached to a document only with the written authority signed by—

(i)if the land trust consists of 1 member—the member; or

(ii)if the land trust consists of no more than 3 members—the chairperson of the land trust and at least 1 other member; or

(iii)in any other case—

(A)the chairperson and at least 2 other members; or

(B)at least 3 members.

(4)Judicial notice must be taken of the seal on a document.

(5)A document marked with the seal must be presumed to have been properly sealed, unless the contrary is proved.

s 154 amd 1991 No. 76 s 51; 1996 No. 37 s 147 sch 2; 2001 No. 33 s 35; 2009 No. 25 s 83 sch

sub 2011 No. 26 s 175

155Function and powers of land trust

(1)The function of a land trust is to provide a legal entity by which the members of the land trust may perform functions under this Act.

(2)A land trust may exercise all powers necessary or convenient to perform its function.

Note—

Also see section 173 (Application of Trusts Act 1973).

s 155 sub 2011 No. 26 s 175

155A Name of land trust

The name of a land trust must include the words ‘Land Trust’ as the last 2 words.

s 155A ins 2019 No. 17 s 95

pt 14 div 2 hdg sub 2011 No. 26 s 175; 2013 No. 23 s 210

pt 14 div 2 sdiv 1 hdg ins 2011 No. 26 s 175

156Minister may appoint member

(1)The Minister may, by notice given to a land trust, appoint a person to be a member of the land trust if—

(a)because of any circumstances affecting the operation of the land trust, the land trust can not appoint a member and a majority of members of the land trust have asked the Minister in writing to appoint the person as a member; or

Example of circumstances affecting the operation of a land trust—

A land trust can not form a quorum for a meeting of the land trust to appoint a member.

(b)the Minister considers it appropriate to appoint the member to ensure the land trust can carry out its functions under this Act.

Example—

The Minister might appoint a member to replace a member removed by the Minister under this division.

(2)Before acting under subsection (1), the Minister must—

(a)consult with the land trust; and

(b)if the Minister considers it appropriate in the circumstances—consult with, and consider the views of, Torres Strait Islanders particularly concerned with the Torres Strait Islander land held by the land trust.

(3)The Minister must not appoint a person under subsection (1) without the person’s consent.

(4)The Minister must give the person a copy of the notice mentioned in subsection (1) when the notice is given to the land trust.

(5)A person appointed as a member of a land trust under this section becomes a member on the day stated in the notice.

(6)In acting under this section, the Minister must have regard to any Island custom applicable to the Torres Strait Islander land held by the land trust.

s 156 sub 2011 No. 26 s 175

amd 2013 No. 23 ss 211, 352 sch 1 pt 1

156ALand trust may appoint member

(1)A land trust may, by resolution, appoint a person to be a member of the land trust.

(2)A land trust must not appoint a person under subsection (1)—

(a)without the person’s consent; or

(b)if the person has been removed as a member of any land trust by the Minister under this division.

(3)A person appointed as a member of a land trust under this section becomes a member on—

(a)the day the resolution appointing the person as a member is made; or

(b)a later day stated in the resolution.

(4)A land trust must record its decision to appoint a person as a member of the land trust in the minutes of the meeting at which the person was appointed.

s 156A ins 2013 No. 23 s 212

pt 14 div 2 sdiv 2 hdg ins 2011 No. 26 s 175

sub 2013 No. 23 s 213

157Grounds for removal or suspension of member

(1)Each of the following is a ground for removing or suspending a member—

(a)if the member is a member of the executive committee of the land trust, the member—

(i)in performing the member’s functions as a member of the committee, has contravened or is contravening a provision of this Act; or

(ii)is carrying on, or has carried on, the business of the land trust in a fraudulent or improper way;

(b)the member has stolen, misappropriated or improperly applied trust property;

(c)the member is acting, or has acted, towards the land trust or another member in a way that is fraudulent, improper or contrary to the best interests of the land trust.

(2)Also, it is a ground for the Minister to remove or suspend a member that, because of any circumstances affecting the operation of the land trust—

(a)the land trust can not remove or suspend a member and a majority of members of the land trust have asked the Minister in writing to remove or suspend the member; and

(b)a ground mentioned in subsection (1)(a), (b) or (c) exists in relation to the member.

Example of circumstances affecting the operation of a land trust—

A land trust can not form a quorum for a general meeting of the land trust to remove or suspend a member.

s 157 sub 2011 No. 26 s 175

amd 2013 No. 23 s 214

pt 14 div 2 sdiv 3 hdg ins 2013 No. 23 s 352 sch 1 pt 1

158Show cause notice

(1)This section applies if the Minister believes a ground exists to remove or suspend a member of a land trust.

(2)The Minister must give the member and the land trust a notice (a show cause notice).

(3)The show cause notice must state the following—

(a)the action the Minister proposes to take under this subdivision (the proposed action);

(b)the ground for the proposed action;

(c)an outline of the facts and circumstances forming the basis for the ground;

(d)if the proposed action is suspension of the member—the proposed suspension period;

(e)that the member and the land trust may, within a stated period (the show cause period), make written representations to the Minister to show why the proposed action should not be taken;

(f)that, if the member is removed as a member of the land trust, the member is also removed as a member of any other land trust.

(4)The show cause period must end at least 1 month after the show cause notice is given.

s 158 sub 2011 No. 26 s 175

amd 2013 No. 23 s 215

159Representations about show cause notice

(1)The member or land trust may make written representations about the show cause notice to the Minister during the show cause period.

(2)The Minister must consider all representations (the accepted representations) made under subsection (1).

s 159 sub 2011 No. 26 s 175

160Ending show cause process without further action

If, after considering the accepted representations for the show cause notice, the Minister no longer believes a ground exists to remove or suspend the member, the Minister must—

(a)take no further action about the show cause notice; and

(b)give the member and the land trust a notice that no further action is to be taken about the show cause notice.

s 160 sub 2011 No. 26 s 175

161Removing or suspending member

(1)This section applies if—

(a)there are no accepted representations about the show cause notice; or

(b)after considering the accepted representations about the show cause notice, the Minister—

(i)still believes a ground exists to remove or suspend the member; and

(ii)believes removal or suspension of the member is warranted.

(2)The Minister may—

(a)if the proposed action was to remove the member—remove the member; or

(b)if the proposed action was to suspend the member—suspend the member for not longer than the proposed suspension period.

(3)Before acting under subsection (2), the Minister must, if the Minister considers it appropriate in the circumstances, consult with and consider the views of Torres Strait Islanders particularly concerned with the Torres Strait Islander land held by the land trust.

(4)In acting under this section, the Minister must have regard to any Island custom applicable to the Torres Strait Islander land held by the land trust.

(5)If the Minister decides to take action under subsection (2), the Minister must as soon as practicable give—

(a)the person an information notice for the decision; and

(b)the land trust notice of the decision.

(6)The decision takes effect on the later of the following—

(a)the day the information notice is given to the person;

(b)the day stated in the information notice for that purpose.

s 161 sub 2011 No. 26 s 175

amd 2013 No. 23 ss 216, 352 sch 1 pt 1

161AEffect of removing member on other land trust membership

(1)This section applies if the Minister removes a member from a land trust under section 161(2) and the member is also a member of another land trust.

(2)The member is also removed as a member of the other land trust.

s 161A ins 2013 No. 23 s 217

162Immediate suspension of member

(1)The Minister may suspend a member of a land trust immediately if the Minister believes—

(a)either—

(i)a ground exists to remove or suspend the member; or

(ii)the member is a member of the executive committee of the land trust and, in performing the member’s functions as a member of the committee, is likely to contravene a provision of this Act; and

(b)it is necessary to suspend the member immediately because there is an immediate risk to the proper operation of the land trust or proper dealing with trust property.

(2)However, the Minister may only immediately suspend the member under this section if the Minister also gives a show cause notice under section 161 to the member and the land trust in relation to the proposed action of removing or suspending the member.

(3)If the Minister decides to immediately suspend the member, the Minister must, at the same time the Minister gives the show cause notice under section 161—

(a)give the member an information notice about the decision to immediately suspend the member; and

(b)give a copy of the information notice mentioned in paragraph (a) to the land trust.

(4)The suspension—

(a)operates immediately the notices mentioned in subsection (3) are given to the member; and

(b)if the member is also a member of another land trust—suspends the member as a member of the other land trust; and

(c)continues to operate until the earlier of the following happens—

(i)the show cause notice is finally dealt with;

(ii)60 days have passed since the notices were given to the member.

s 162 amd 1992 No. 36 s 2 sch 2; 1993 No. 85 s 170C (amd 1994 No. 61 s 2 sch 2); 2000 No. 16 s 590 sch 1 pt 2

sub 2011 No. 26 s 175; 2013 No. 23 s 218

pt 14 div 2 sdiv 4 hdg (prev sdiv 3 hdg) ins 2011 No. 26 s 175

sub 2013 No. 23 s 219

163Proposed removal or suspension approved by resolution and show cause notice

(1)A land trust may, by resolution, decide to take action under this subdivision (the proposed action) to remove or suspend a member of the land trust because a ground exists for the removal or suspension.

(2)However, members of the land trust must be given at least 14 days notice of the general meeting of the land trust at which the resolution is intended to be proposed.

(3)If the land trust makes a decision under subsection (1), the land trust must—

(a)refer the matter of the proposed action to the executive committee of the land trust to decide; and

(b)give the member a notice (a show cause notice).

(4)The show cause notice must state all of the following—

(a)details of the resolution mentioned in subsection (1), including the date the resolution was made;

(b)the proposed action;

(c)the ground for the proposed action;

(d)an outline of the facts and circumstances forming the basis for the ground;

(e)if the proposed action is suspension of the member—the proposed suspension period;

(f)that the member may, within a stated period (the show cause period), make written representations to the land trust to show why the proposed action should not be taken.

(5)The show cause period must end at least 1 month after the show cause notice is given.

s 163 sub 2011 No. 26 s 175; 2013 No. 23 s 219

163ARepresentations about show cause notice

(1)The member may make written representations to the land trust about the show cause notice during the show cause period.

(2)A copy of any representations made by the member under subsection (1) must be given to each member of the executive committee of the land trust.

s 163A ins 2013 No. 23 s 219

163BLand trust decisions about removal or suspension of member

(1)This section provides for how, by a resolution of the executive committee of the land trust, the land trust decides the action to be taken about a show cause notice given to a member of the land trust.

(2)The resolution may be made only if the show cause period stated in the show cause notice has ended.

(3)The executive committee must—

(a)consider all representations about the show cause notice received under section 163A(1); and

(b)decide—

(i)whether a ground exists to remove or suspend the member; and

(ii)if the executive committee decides a ground exists—whether removal or suspension of the member is warranted.

(4)The land trust must take no further action about the show cause notice if the executive committee decides—

(a)no ground exists to remove or suspend the member; or

(b)a ground exists but the removal or suspension of the member is not warranted.

(5)Subsections (6) to (8) apply if the executive committee decides a ground exists to remove or suspend the member and that the removal or suspension of the member is warranted.

(6)The executive committee may decide to—

(a)if the proposed action was to remove the member—remove or suspend the member; or

(b)if the proposed action was to suspend the member—suspend the member for not longer than the proposed suspension period.

(7)If a motion proposing removal or suspension is not passed by resolution, the executive committee of the land trust may decide to—

(a)adjourn the matter of the proposed action; or

(b)refer the matter of the proposed action to a general meeting of the land trust to decide; or

(c)take no further action about the show cause notice.

(8)A decision to remove or suspend takes effect on the day an information notice about the decision is given to the member under section 163D or a later day stated in the notice.

(9)The executive committee of the land trust must record its decisions under this section—

(a)if a decision was made at a meeting of the executive committee—in the minutes of the meeting at which the decision was made; or

(b)otherwise—in writing.

s 163B ins 2013 No. 23 s 219

163CDecisions about removal or suspension of member referred to land trust general meeting

(1)This section applies if the executive committee of a land trust refers, to a general meeting of the land trust, the matter of the action to be taken about a show cause notice given to a member of the land trust.

(2)The land trust may, by resolution at a general meeting of the land trust, decide the action to be taken about the show cause notice.

(3)For subsection (2), section 163B applies with a reference to the executive committee of the land trust taken to be a reference to the land trust.

(4)However, if a motion proposing removal or suspension fails to pass by resolution, the land trust must take no further action about the show cause notice.

s 163C ins 2013 No. 23 s 219

163DAction after decision about removal or suspension of member

(1)This section applies if a decision about a show cause notice given to a member of a land trust is made under section 163B or 163C.

(2)As soon as practicable after the decision is made, the land trust must give the member notice of the following—

(a)if, because of the decision, the land trust is, or is required, to take no further action about the show cause notice—notice that no further action will be taken;

(b)if the decision is to remove or suspend the member—an information notice for the decision;

(c)if the decision is to adjourn the matter of the removal or suspension of the member—notice of the decision to adjourn the matter;

(d)if the decision is to refer the matter of the removal or suspension of a member of the land trust to a general meeting of the land trust—notice of the decision to refer the matter and of the day and time of the general meeting of the land trust at which the matter will be considered.

s 163D ins 2013 No. 23 s 219

163EImmediate suspension of member

(1)A land trust may, by a resolution of the executive committee of the land trust, suspend a member of a land trust immediately if the executive committee decides—

(a)either—

(i)a ground exists to remove or suspend the member; or

(ii)the member is a member of the executive committee and, in performing the member’s functions as a member of the executive committee, is likely to contravene a provision of this Act; and

(b)it is necessary to suspend the member immediately because there is an immediate risk to the proper operation of the land trust or proper dealing with trust property.

(2)If the executive committee decides to immediately suspend the member, it must—

(a)give the member an information notice about the decision; and

(b)ensure a motion proposing disciplinary action be taken against the member is considered at a general meeting of the land trust within 60 days after the information notice is given to the member.

(3)The suspension—

(a)operates immediately the information notice is given to the member; and

(b)continues to operate until the earliest of the following happens—

(i)a motion proposing disciplinary action be taken against the member fails to pass by resolution at a general meeting of the land trust;

(ii)60 days have passed since the information notice was given to the member and the member has not been given, under section 163(3), a show cause notice for proposed disciplinary action against the member;

(iii)a show cause notice for proposed disciplinary action against the member, given to the member under section 163(3), is finally dealt with;

(iv)60 days have passed since the member was given, under section 163(3), a show cause notice for proposed disciplinary action against the member.

(4)In this section—

disciplinary action, against a member of a land trust, means action to remove or suspend the member under this subdivision.

s 163E ins 2013 No. 23 s 219

163FLimitation on land trust’s power about suspension of member

A land trust can not end the suspension of a person from membership of the land trust if the suspension is imposed by the Minister under this division.

s 163F ins 2013 No. 23 s 219

pt 14 div 2 sdiv 5 hdg ins 2013 No. 23 s 219

163GInformation about appointment, removal or resignation of members

(1)This section applies to a land trust if—

(a)the land trust appoints a person as a member of the land trust or removes a member from the land trust; or

(b)a member of the land trust resigns.

(2)As soon as practicable after the appointment, removal or resignation has effect, the land trust must give the chief executive notice of the appointment, removal or resignation.

s 163G ins 2013 No. 23 s 219

pt 14 div 3 hdg sub 2011 No. 26 s 175

164Particular information to be recorded in register

(1)The chief executive must, for each land trust and each financial year, record in the Torres Strait Islander land holding entity register whether or not the land trust has, for the financial year, operated in compliance with the Act.

(2)In deciding whether or not a land trust has operated in compliance with the Act, the chief executive must have regard to any minimum requirements, declared by the Minister, that a land trust must meet to be compliant.

s 164 sub 2011 No. 26 s 175

amd 2019 No. 17 s 96

pt 14 div 4 hdg sub 2011 No. 26 s 175

165Definition for div 4

In this division—

information includes a document.

s 165 sub 2011 No. 26 s 175

166Power to require particular information

(1)The chief executive may, by notice, require a land trust to give the chief executive stated information, or stated types of information, in its possession or control that is, or are, relevant to the operation of the land trust or the conduct of its business.

Examples of information—

•information about how a land trust made a particular decision

•accounts, bank statements and other financial information

•minutes of meetings

(2)The notice must state a reasonable period to comply with the requirement.

(3)The land trust must comply with the requirement unless complying with the notice would place the land trust in contravention of a law.

s 166 sub 2011 No. 26 s 175

amd 2013 No. 23 s 352 sch 1 pt 1

pt 14 div 5 hdg ins 2011 No. 26 s 175

167Definitions for div 5

In this division—

account, of a land trust, means—

(a)an account, with a financial institution, in the land trust’s name or in which the land trust has an interest; or

(b)another account to which trust money is deposited.

holder, of a land trust’s account, means the land trust or other person authorised to operate the account.

trust money means any amount that is trust property.

s 167 sub 2011 No. 26 s 175

168Freezing land trust’s accounts

(1)The chief executive may give a direction under subsection (2) if, on considering a report on an audit of a land trust’s accounts, it appears to the chief executive that—

(a)the land trust, a member of the land trust or another person has, or may have, stolen, misappropriated or misapplied trust money; or

(b)the accounts of the land trust are not being kept appropriately.

(2)The chief executive may direct, by a notice, that—

(a)an amount must not be drawn from a stated account other than with the chief executive’s approval; or

(b)a stated account may be operated only under stated conditions.

(3)The direction must—

(a)be given to the holder of the account and the financial institution where the account is kept; and

(b)state the account to which it relates; and

(c)if it includes a direction under subsection (2)(b), state the conditions under which the account may be operated.

s 168 sub 2011 No. 26 s 175

amd 2013 No. 23 s 352 sch 1 pt 1

169Financial institution must comply with direction

(1)After the direction is given to a financial institution, and until it is withdrawn, the financial institution must not—

(a)pay a cheque or other instrument drawn on the account stated in the direction unless the cheque or instrument is also signed by the chief executive; or

(b)give effect to another transaction on the account that is not authorised because of the direction.

Maximum penalty—100 penalty units.

(2)For section 168(2)(a), the chief executive’s signature on a cheque or instrument is sufficient evidence of the chief executive’s approval to draw an amount from the account to honour the cheque or instrument.

s 169 sub 2011 No. 26 s 175

170Withdrawal of direction

(1)The chief executive may withdraw a direction given under section 168 at any time.

(2)If the direction is withdrawn, the chief executive must immediately give all persons who were given the direction a notice, signed by the chief executive, that the direction has been withdrawn.

(3)A direction stops having effect when it is withdrawn.

s 170 sub 2011 No. 26 s 175

amd 2013 No. 23 s 352 sch 1 pt 1

pt 14 div 6 hdg ins 2011 No. 26 s 175

171Chief executive may prepare model rules

(1)The chief executive may prepare model rules for land trusts.

(2)In adopting changes to its rules, or adopting new rules, a land trust must have regard to the model rules prepared under subsection (1).

(3)If the chief executive prepares model rules under subsection (1), the chief executive must give a copy of the model rules to each land trust.

s 171 sub 2011 No. 26 s 175

171AResolution of executive committee without meeting

A resolution of the executive committee of a land trust is validly made by the committee, even if it is not passed at a meeting of the committee, if—

(a)notice of the proposed resolution is given, under procedures approved by the committee, to all members of the committee entitled to vote on the resolution (the voting members); and

(b)a majority of the voting members give written agreement to the resolution.

s 171A ins 2013 No. 23 s 220

172Provision about vesting of Torres Strait Islander land

(1)If Torres Strait Islander land is held by a land trust, the land is taken to have been vested in the land trust.

(2)Subsection (1) applies to Torres Strait Islander land whether or not the land was first held by the land trust before the commencement of this section.

s 172 amd 1993 No. 85 s 170D (amd 1994 No. 61 s 2 sch 2)

sub 2011 No. 26 s 175

pt 15 hdg ins 2011 No. 26 s 175

pt 15 div 1 hdg ins 2011 No. 26 s 175

173Application of Trusts Act 1973

(1)The Trusts Act 1973 applies to a land trust and its members in relation to dealings with Torres Strait Islander land only to the extent prescribed under this part.

(2)To the extent that the Trusts Act 1973 does apply to a land trust and its members in relation to dealings with Torres Strait Islander land, it applies with the changes prescribed under this part.

(3)To remove any doubt, it is declared that the Trusts Act 1973 applies, without changes, to a land trust and its members in relation to dealings with trust property that is not Torres Strait Islander land.

s 173 amd 2003 No. 77 s 125; 2008 No. 29 s 73 sch

sub 2011 No. 26 s 175

pt 15 div 2 hdg ins 2011 No. 26 s 175

174Jurisdiction of Supreme Court

(1)Subject to subsection (2), the jurisdiction of the Supreme Court under the Trusts Act 1973 includes matters arising under this Act.

(2)The powers of the Supreme Court under the Trusts Act 1973 are to be exercised—

(a)if provision is made in this part for a matter—in accordance with this part; or

(b)otherwise—in a way that is consistent with, and best achieves, the purposes of this Act.

s 174 sub 2011 No. 26 s 175

175Power of court to relieve member of land trust from personal liability

(1)This section applies if it appears to the Supreme Court that a member of a land trust is or may be personally liable for a breach of trust by the member, another member or the land trust.

(2)If it appears to the court that the member—

(a)has acted honestly and reasonably; and

(b)ought fairly to be excused for the breach of trust or for omitting to obtain the directions of the court in the matter in which the member, the other member or the land trust committed the breach;

the court may relieve the member wholly or partly from personal liability for the breach.

s 175 sub 2011 No. 26 s 175

176Court may order beneficiary to indemnify for certain breaches

(1)This section applies if a land trust or a member of a land trust commits a breach of trust at the instigation or request of, or with the written consent of, a beneficiary.

(2)The Supreme Court may, as it considers just, order that all or part of the interest of the beneficiary in the trust property is impounded to indemnify the land trust, the member or persons claiming through the land trust or member.

s 176 amd 1993 No. 85 s 170E (amd 1994 No. 61 s 2 sch 2)

sub 2011 No. 26 s 175

177Right of land trust or member to apply to court for directions

(1)A land trust or member of a land trust may apply to the Supreme Court for directions in relation to—

(a)the trust property of the land trust or its management or administration; or

(b)the exercise of a power of the land trust or a member of the land trust.

(2)The application must be served on, and the hearing of the application may be attended by—

(a)all persons interested in the application; or

(b)the persons interested in the application, or their representatives, that the court considers appropriate.

s 177 sub 2011 No. 26 s 175

178Court’s jurisdiction to make orders conferring power on land trust or members

(1)This section applies if, in the Supreme Court’s opinion, a disposition or transaction—

(a)is expedient for the management or administration of trust property by a land trust or members of a land trust; or

(b)would be in the best interest of the Torres Strait Islanders, or a majority of the Torres Strait Islanders, for whose benefit the property is held;

but—

(c)it is inexpedient, difficult or impractical to effect the disposition or transaction without the assistance of the Supreme Court; or

(d)the land trust or members do not have power under the Act to effect the disposition or transaction.

(2)The Supreme Court may—

(a)confer on the land trust or members the necessary power for the purpose of effecting the disposition or transaction (other than a power to sell or mortgage Torres Strait Islander land), on such terms and subject to any conditions, as the court considers appropriate; and

(b)direct the way that—

(i)any amount authorised to be spent, and the costs of the disposition or transaction, are to be paid or borne from trust property; and

(ii)the amount is to be apportioned between the capital and income of the trust property.

(3)The Supreme Court may—

(a)rescind or vary an order under this section; or

(b)make a new or further order.

(4)The rescission or variation of an order does not affect anything done by a person relying on the order before the person became aware of the application to the court to rescind or vary the order.

(5)An application to the court under this section may be made by—

(a)a land trust; or

(b)a member of a land trust; or

(c)a person for whose benefit the trust property is held.

(6)In this section—

disposition means a sale, lease, mortgage, surrender, release or another type of disposition.

transaction means a purchase, investment, acquisition, retention, expenditure or another type of transaction.

s 178 sub 2011 No. 26 s 175

179Protection of land trust or member while acting under direction of court

(1)If a land trust or member of a land trust acts under direction of the Supreme Court, the land trust or member is to be taken to have discharged the duty as trustee in the subject matter of the direction.

(2)Subsection (1) applies even if the direction is subsequently declared invalid, overruled, set aside or otherwise rendered of no effect or varied.

(3)This section does not indemnify a land trust or member of a land trust in relation to an act done in accordance with a direction of the court obtained by the land trust or member by fraud, wilful concealment or misrepresentation or in acquiescence in the fraud, wilful concealment or misrepresentation.

s 179 sub 2011 No. 26 s 175

180Power of Supreme Court to make orders in absence of member

(1)If, in a proceeding under this Act, the Supreme Court is satisfied that—

(a)a diligent search has been made for a member of a land trust who is named as a party in an action; and

(b)the member can not be found to serve the member with a process of the court;

the court may hear and decide the proceeding and give judgment against the member as if the member had been served or had entered an appearance in the action, and had also appeared by counsel or solicitor at the hearing.

(2)Subsection (1) applies without prejudice to any interest the member may have in the matter in question in the proceeding in any other capacity.

(3)If a member, at the time of the proceeding—

(a)is not within the jurisdiction; or

(b)is under a disability; or

(c)can not be found;

the court may appoint a person to represent the member and may proceed in the absence of the member, and all orders made in the proceeding are binding on the member as if the member had been present and of full capacity.

s 180 amd 2003 No. 77 s 126; 2008 No. 29 s 73 sch

sub 2011 No. 26 s 175

181Power of Supreme Court to charge costs on trust property

The Supreme Court may order the cost and expenses of, and incidental to, an application for an order or direction under this part—

(a)to be paid or raised out of the trust property (other than Torres Strait Islander land) as the court considers appropriate; or

(b)to be borne and paid in the way and by the persons as the court considers just.

s 181 amd 1993 No. 85 s 171A (amd 1994 No. 61 s 2 sch 2); 2003 No. 77 s 127; 2008 No. 29 s 73 sch

sub 2011 No. 26 s 175

pt 16 hdg ins 2011 No. 26 s 175