This Act retroactively validates many State land‑and‑water decisions that might have conflicted with native title, confirms State ownership of resources and public access to waterways, and sets how validated grants affect native title (including possible extinguishment, suspension, or compensation). It creates a process for registered native title parties to object to proposed State acts via NCAT, allocates compensation responsibilities and recovery between Crown and State authorities, and gives the State regulatory and ministerial discretion to align law with the Commonwealth Native Title Act.
The Native Title (New South Wales) Act 1994 (the State Act) is the principal State response to the recognition of native title in Mabo v Queensland (No 2) (1992) 175 CLR 1 and the enactment of the Native Title Act 1993 (Cth) (NTA). Its core function is to validate, confirm and regulate the interaction between State acts and native title rights and interests.
Part 2 validates past acts attributable to the State (s 8) and intermediate period acts (s 8A, inserted 1998). A "past act" takes its meaning from NTA s 228; an "intermediate period act" from NTA s 232A (acts between 1 January 1994 and 23 December 1996). Validation is retrospective: every such act "is valid, and is taken always to have been valid" (ss 8, 8A). The effects on native title are then calibrated according to statutory categories. Category A past acts that are not public works wholly extinguish native title (s 10(2)); Category A public works extinguish native title on the land or waters where the work is situated, with deemed extinguishment on 1 January 1994 where construction finished after that date (s 11). Category B past acts extinguish native title only to the extent of inconsistency (s 12). Category C (mining leases) and D (residual) past acts attract the non-extinguishment principle in NTA s 238 (s 13).
Division 2A (ss 14A–14F) applies parallel rules to intermediate period acts, with Category A acts extinguishing native title (ss 14B, 14C), Category B extinguishing to the extent of inconsistency (s 14D), and Category C/D attracting non-extinguishment (s 14E). These effects are expressly subject to registered indigenous land use agreements (s 14F).
Part 3 confirms existing State ownership of natural resources, rights to the flow and use of water, and the prevalence of statutory fishing access rights over other public or private rights (s 17). It further confirms public access to and enjoyment of waterways, beds and banks, coastal waters, beaches, stock-routes and areas that were public places at 31 December 1993 (s 18). The confirmation does not itself extinguish native title (NTA s 212(3), noted after s 18).
Current sections
Direct links to the current provisions in Native Title (New South Wales) Act 1994.
This Act commences on a day or days to be appointed by proclamation.
3
Objects of this Act
3 Objects of this Act
3 Objects of this Act
The main objects of this Act are—
(a) in accordance with the Commonwealth Native Title Act, to validate any past acts, and intermediate period acts, invalidated because of the existence of native title and to confirm certain rights, and
(b) to ensure that New South Wales law is consistent with standards set by the Commonwealth Native Title Act for future dealings affecting native title.
(c) (Repealed)
s 3: Am 1998 No 88, Sch 1 [1] [2].
4
Definitions
4 Definitions
4 Definitions
(1) In this Act—
Commonwealth Native Title Act or NTA means the Native Title Act 1993 of the Commonwealth.
State Compulsory Acquisition Act means any of the following laws—
• any enactment that effects a compulsory acquisition of land and provides compensation as if the acquisition had been effected by an acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991
• an Act prescribed by the regulations made under this Act.
(2) In this Act, the expression Aboriginal peoples includes Torres Strait Islanders.
s 4: Am 1998 No 88, Sch 1 [3] [4]; 1999 No 42, Sch 3.13.
5
Words and expressions used in Commonwealth Native Title Act
5 Words and expressions used in Commonwealth Native Title Act
5 Words and expressions used in Commonwealth Native Title Act
(1) Words and expressions used in the Commonwealth Native Title Act and this Act have the same meanings in this Act as they have in the Commonwealth Native Title Act.
(2) This section applies except so far as the context or subject-matter otherwise indicates or requires.
(3) However, this section does not apply to a word or expression defined in section 4 (Definitions).
Note—
Section 222 of the Commonwealth Native Title Act (“NTA”) sets out a list of definitions used in that Act.
6
Act to bind Crown
6 Act to bind Crown
6 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.
Part 2
Validation and its effects
Part 2 Validation and its effects
Part 2 Validation and its effects
Division 1
General
Division 1 General
Division 1 General
7
Objects of this Part
7 Objects of this Part
7 Objects of this Part
The objects of this Part are—
(a) to validate, in accordance with section 19 (State/Territory acts may be validated) of the Commonwealth Native Title Act, past acts attributable to the State, and
(b) to validate, in accordance with section 22F of the Commonwealth Native Title Act, intermediate period acts attributable to the State, and
(c) to provide for the effects of any such validation.
Note—
An act is defined in sec 226 NTA.
A past act is defined in sec 228 NTA.
An intermediate period act is defined in sec 232A NTA (being certain acts that took place between 1 January 1994 and 23 December 1996).
An act attributable to the State is defined in sec 239 NTA.
s 7: Am 1998 No 88, Sch 1 [5] [6].
8
Validation of past acts attributable to the State
8 Validation of past acts attributable to the State
8 Validation of past acts attributable to the State
(NTA, sec 19)
Every past act attributable to the State is valid, and is taken always to have been valid.
8A
Validation of intermediate period acts attributable to the State
8A Validation of intermediate period acts attributable to the State
8A Validation of intermediate period acts attributable to the State
(NTA, sec 22F)
Every intermediate period act attributable to the State is valid, and is taken always to have been valid.
s 8A: Ins 1998 No 88, Sch 1 [7].
9
Application of remaining provisions of this Part
9 Application of remaining provisions of this Part
9 Application of remaining provisions of this Part
(1) The remaining provisions of this Part apply—
(a) to a past act attributable to the State that is validated by section 8, and
(b) to an intermediate period act attributable to the State that is validated by section 8A.
(2), (3) (Repealed)
s 9: Am 1998 No 88, Sch 1 [8] [9].
Division 2
Effect of validation of past acts on native title
Division 2 Effect of validation of past acts on native title
Division 2 Effect of validation of past acts on native title
pt 2, div 2, hdg: Am 1998 No 88, Sch 1 [10].
pt 2, div 2, note: Ins 1998 No 88, Sch 1 [12].
9A
Application of this Division
9A Application of this Division
9A Application of this Division
This Division applies to a past act attributable to the State that is validated by section 8.
s 9A: Ins 1998 No 88, Sch 1 [11].
10
Category A past acts that are not public works
10 Category A past acts that are not public works
10 Category A past acts that are not public works
(NTA, secs 19 and 15 (1) (a))
(1) This section applies if the past act is a category A past act other than a category A past act to which section 229 (4) (which deals with public works) of the Commonwealth Native Title Act applies.
(2) The past act extinguishes native title.
Note—
Category A past act is defined in sec 229 NTA. This category covers freehold grants, some leasehold grants (commercial, agricultural, pastoral and residential leases and those parts of certain mining leases (such as lands on which there are city, town or private residences) that are taken to be “dissected” in accordance with sec 245 NTA) and public works. Lease, permit and various types of leases are defined in secs 242 to 249 NTA. Public work is defined in sec 253 NTA.
11
Category A past acts that are public works
11 Category A past acts that are public works
11 Category A past acts that are public works
(NTA, secs 19 and 15 (1) (b))
(1) This section applies if the past act is a category A past act to which section 229 (4) of the Commonwealth Native Title Act applies.
(2) The past act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated.
(3) If section 229 (4) (a) (which deals with public works completed after 1 January 1994) of the Commonwealth Native Title Act applies to the past act, the extinguishment is taken to have happened on 1 January 1994.
12
Inconsistent category B past acts
12 Inconsistent category B past acts
12 Inconsistent category B past acts
(NTA, secs 19 and 15 (1) (c))
(1) This section applies if the past act is a category B past act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned.
(2) The past act extinguishes the native title to the extent of the inconsistency.
Note—
Category B past act is defined in sec 230 NTA. This category covers leasehold grants (other than leases that are category A past acts and mining leases).
13
Category C and D past acts
13 Category C and D past acts
13 Category C and D past acts
(NTA, secs 19 and 15 (1) (d))
(1) This section applies if the past act is a category C past act or a category D past act.
(2) The non-extinguishment principle applies to the past act.
Note—
Category C past act is defined in sec 231 NTA. This category deals with the grant of mining leases. Mining lease is defined in sec 245 NTA and mine in sec 253 NTA.
Category D past act is defined in sec 232 NTA. It is the residual category of past acts.
The effect of the non-extinguishment principle is set out in sec 238 NTA.
14
Extinguishment does not confer right to eject or remove Aboriginal peoples
14 Extinguishment does not confer right to eject or remove Aboriginal peoples
14 Extinguishment does not confer right to eject or remove Aboriginal peoples
(NTA, secs 15 (2) and 19)
An extinguishment of native title effected by this Part does not by itself confer a right to eject or remove any Aboriginal peoples who reside on or who exercise access over land or waters covered by a pastoral lease the grant, re-grant or extension of which is validated by section 8 (Validation of past acts attributable to the State).
Note—
Section 20 NTA provides native title holders with an entitlement to compensation from the State in respect of past acts attributable to the State.
Division 2A
Effect of validation of intermediate period acts on native title
Division 2A Effect of validation of intermediate period acts on native title
Division 2A Effect of validation of intermediate period acts on native title
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
14A
Application of this Division
14A Application of this Division
14A Application of this Division
This Division applies to an intermediate period act attributable to the State that is validated by section 8A.
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
14B
Category A intermediate period acts dealing with the granting or vesting of certain interests in land or waters
14B Category A intermediate period acts dealing with the granting or vesting of certain interests in land or waters
14B Category A intermediate period acts dealing with the granting or vesting of certain interests in land or waters
(NTA, secs 22F and 22B (a))
(1) This section applies to a category A intermediate period act to which section 232B (2), (3) or (4) (which deals with things such as the grant or vesting of freehold estates and certain leases) of the Commonwealth Native Title Act applies.
(2) The intermediate period act extinguishes all native title in relation to the land or waters concerned.
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
14C
Category A intermediate period acts that are public works
14C Category A intermediate period acts that are public works
14C Category A intermediate period acts that are public works
(NTA, secs 22F and 22B (b))
(1) This section applies to a category A intermediate period act to which section 232B (7) (which deals with public works) of the Commonwealth Native Title Act applies.
(2) The intermediate period act extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated.
(3) The extinguishment is taken to have happened when the construction or establishment began.
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
14D
Category B intermediate period acts
14D Category B intermediate period acts
14D Category B intermediate period acts
(1) This section applies to a category B intermediate period act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned.
(2) The intermediate period act extinguishes the native title to the extent of the inconsistency.
Note—
Category B intermediate period acts are defined in sec 232C NTA.
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
14E
Category C and D intermediate period acts
14E Category C and D intermediate period acts
14E Category C and D intermediate period acts
(1) This section applies to a category C intermediate period act or a category D intermediate period act.
(2) The non-extinguishment principle applies to the intermediate period act.
Note—
Category C intermediate period acts are defined in sec 232D NTA and category D intermediate period acts are defined in sec 232E NTA.
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
14F
This Division is subject to registered indigenous land use agreements
14F This Division is subject to registered indigenous land use agreements
14F This Division is subject to registered indigenous land use agreements
Sections 14B–14E apply subject to section 31.
Note—
Section 22G NTA provides native title holders with an entitlement to compensation from the State in respect of the validation of intermediate period acts attributable to the State.
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
Division 3
Other effects of validation
Division 3 Other effects of validation
Division 3 Other effects of validation
15
Preservation of beneficial reservations and conditions—past acts
15 Preservation of beneficial reservations and conditions—past acts
15 Preservation of beneficial reservations and conditions—past acts
(NTA, secs 19 and 16)
(1) This section applies if—
(a) the past act contains a reservation or condition for the benefit of Aboriginal peoples, or
(b) the doing of the past act would affect rights or interests (other than native title rights and interests) of Aboriginal peoples (whether arising under legislation, at common law or in equity and whether or not rights of usage).
(2) Division 2 (Effect of validation of past acts on native title) does not affect a reservation or condition or rights or interests mentioned in this section.
s 15: Am 1998 No 88, Sch 1 [14] [15].
15A
Preservation of beneficial reservations and conditions—intermediate period acts
15A Preservation of beneficial reservations and conditions—intermediate period acts
15A Preservation of beneficial reservations and conditions—intermediate period acts
(NTA, secs 22F and 22C)
(1) This section applies if—
(a) an intermediate period act attributable to the State contains a reservation or condition for the benefit of Aboriginal peoples, or
(b) the doing of an intermediate period act attributable to the State would affect rights or interests (other than native title rights and interests) of Aboriginal peoples (whether arising under legislation, at common law or in equity and whether or not rights of usage).
(2) Division 2A (Effect of validation of intermediate period acts on native title) does not affect a reservation or condition or rights or interests mentioned in this section.
s 15A: Ins 1998 No 88, Sch 1 [16].
Part 3
Confirmation of certain rights
Part 3 Confirmation of certain rights
Part 3 Confirmation of certain rights
16
Object of this Part
16 Object of this Part
16 Object of this Part
The object of this Part is to confirm, in accordance with section 212 (Confirmation of ownership of natural resources, access to beaches etc) of the Commonwealth Native Title Act—
(a) any existing ownership of natural resources and certain water and fishing access rights, and
(b) public access to and enjoyment of beaches and certain other places.
17
Confirmation of ownership of natural resources, right to flow of water and fishing access rights
17 Confirmation of ownership of natural resources, right to flow of water and fishing access rights
17 Confirmation of ownership of natural resources, right to flow of water and fishing access rights
(NTA, sec 212 (1))
(1) The existing ownership of all natural resources owned by the State is confirmed.
(2) All existing rights of the State to use, control and regulate the flow of water are confirmed.
(3) All existing fishing access rights under State law are confirmed to prevail over any other public or private fishing rights.
18
Confirmation of access to certain areas
18 Confirmation of access to certain areas
18 Confirmation of access to certain areas
(NTA, sec 212 (2) and (3))
Existing public access to and enjoyment of the following areas is confirmed—
(a) waterways,
(b) beds and banks or foreshores of waterways,
(c) coastal waters,
(d) beaches,
(da) stock-routes,
(e) areas that were public places at the end of 31 December 1993.
Note—
Under section 212 (3) (which deals with the effect of confirmation of ownership of natural resources, the right to flow of water and fishing access rights and with confirmation of access to certain areas) of the Commonwealth Native Title Act, the confirmation made by sections 17 and 18 does not extinguish native title rights and interests and does not affect a conferral of land or waters, or an interest in land or waters, under a law that confers benefits only on Aboriginal peoples.
s 18: Am 1998 No 88, Sch 1 [17] [18].
Part 4
Confirmation of past extinguishment of native title
Part 4 Confirmation of past extinguishment of native title
Part 4 Confirmation of past extinguishment of native title
pt 4: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [20].
19
Objects of this Part
19 Objects of this Part
19 Objects of this Part
(1) The objects of this Part are—
(a) to confirm the complete extinguishment of native title by previous exclusive possession acts attributable to the State, and
(b) to confirm the partial extinguishment of native title by previous non-exclusive possession acts attributable to the State.
(2) The confirmation is as contemplated by sections 23E and 23I of the Commonwealth Native Title Act.
s 19: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [20].
20
Confirmation of extinguishment of native title by previous exclusive possession acts of the State
20 Confirmation of extinguishment of native title by previous exclusive possession acts of the State
20 Confirmation of extinguishment of native title by previous exclusive possession acts of the State
(NTA, secs 23E and 23C)
(1) Acts other than public works If an act is a previous exclusive possession act under section 23B (2) (including because of section 23B (3)) of the Commonwealth Native Title Act and is attributable to the State—
(a) the act extinguishes any native title in relation to the land or waters covered by the freehold estate, Scheduled interest or lease concerned, and
(b) the extinguishment is taken to have happened when the act was done.
(2) Public works If an act is a previous exclusive possession act under section 23B (7) (which deals with public works) of the Commonwealth Native Title Act and is attributable to the State—
(a) the act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated, and
(b) the extinguishment is taken to have happened when the construction or establishment of the public work began.
(3) Other extinguishment provisions do not apply If this section applies to the act, Divisions 2 and 2A of Part 2 do not apply to the act.
ss 20–22: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [20].
21
Preservation of beneficial reservations and conditions
21 Preservation of beneficial reservations and conditions
21 Preservation of beneficial reservations and conditions
(NTA, secs 23E and 23D)
If—
(a) a previous exclusive possession act attributable to the State contains a reservation or condition for the benefit of Aboriginal peoples, or
(b) the doing of a previous exclusive possession act attributable to the State would affect rights or interests (other than native title rights and interests) of Aboriginal peoples (whether arising under legislation, at common law or in equity and whether or not rights of usage),
nothing in section 20 affects that reservation or condition or those rights or interests.
ss 20–22: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [20].
22
Confirmation of validity of use of certain land held by Crown etc
22 Confirmation of validity of use of certain land held by Crown etc
22 Confirmation of validity of use of certain land held by Crown etc
(NTA, secs 23E and 23DA)
To avoid doubt, if the act is a previous exclusive possession act because of section 23B (9C) (b) (which deals with grants to the Crown etc) of the Commonwealth Native Title Act, the use of the land or waters concerned as mentioned in that paragraph is valid.
ss 20–22: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [20].
23
Confirmation of partial extinguishment of native title by previous non-exclusive possession acts of the State
23 Confirmation of partial extinguishment of native title by previous non-exclusive possession acts of the State
23 Confirmation of partial extinguishment of native title by previous non-exclusive possession acts of the State
(NTA, secs 23I and 23G)
(1) Subject to subsection (2), if a previous non-exclusive possession act is attributable to the State—
(a) to the extent that the act involves the grant of rights and interests that are not inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned, the rights and interests granted, and the doing of any activity in giving effect to them, prevail over the native title rights and interests but do not extinguish them, and
(b) to the extent that the act involves the grant of rights and interests that are inconsistent with native title rights and interests in relation to the land or waters covered by the lease concerned—
(i) if, apart from this Act, the act extinguishes the native title rights and interests—the native title rights and interests are extinguished, and
(ii) in any other case—the native title rights and interests are suspended while the lease concerned, or the lease as renewed, re-made, re- granted or extended, is in force, and
(c) any extinguishment under this subsection is taken to have happened when the act was done.
(2) If the act is the grant of a pastoral lease or an agricultural lease to which section 10 applies, this section does not apply to the act.
(3) If this section applies to an act, Divisions 2 and 2A of Part 2 do not apply to the act.
ss 23–25: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [20].
24
Preservation of beneficial reservations and conditions
24 Preservation of beneficial reservations and conditions
24 Preservation of beneficial reservations and conditions
(NTA, secs 23I and 23H)
If—
(a) a previous non-exclusive possession act attributable to the State contains a reservation or condition for the benefit of Aboriginal peoples, or
(b) the doing of a previous non-exclusive possession act attributable to the State would affect rights or interests (other than native title rights and interests) of Aboriginal peoples (whether arising under legislation, at common law or in equity and whether or not rights of usage),
nothing in section 23 affects that reservation or condition or those rights or interests.
ss 23–25: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [20].
25
Notification
25 Notification
25 Notification
(NTA, secs 23I and 23HA)
In the case of a previous non-exclusive possession act to which section 23F (3) (c) (ii) of the Commonwealth Native Title Act applies—
(a) notice must be given, in the way determined in writing by the Commonwealth Minister, to any representative Aboriginal/Torres Strait Islander bodies, registered native title bodies corporate and registered native title claimants in relation to the land or waters that will be affected by the act about the doing or proposed doing of the act, or acts of that class, in relation to the land or waters concerned, and
(b) they must be given an opportunity to comment on the act or class of acts.
Note—
Section 23J NTA provides native title holders with an entitlement to compensation from the State in respect of certain acts attributable to the State that extinguish native title under this Part.
ss 23–25: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [20].
Part 5
Validation of transfers under land rights legislation
Part 5 Validation of transfers under land rights legislation
Part 5 Validation of transfers under land rights legislation
pt 5: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [21].
(b) the claims for the lands were made before 28 November 1994, and
(c) the acts took place before or take place after the commencement of section 22J of the Commonwealth Native Title Act, and
(d) the acts are not intermediate period acts, and
(e) the acts are invalid to any extent because of Division 3 of Part 2 of the Commonwealth Native Title Act or for any other reason, but would be valid to that extent if native title did not exist in relation to the lands,
the acts are valid, and are taken always to have been valid.
ss 26–28: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [21].
28
Effect of validation on native title
28 Effect of validation on native title
28 Effect of validation on native title
(NTA, sec 22K)
The non-extinguishment principle applies to the acts.
Note—
Section 22L NTA provides native title holders with an entitlement to compensation from the State in respect of acts attributable to the State that are validated under this Part.
ss 26–28: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [21].
Part 6
Validation of acts covered by indigenous land use agreements
Part 6 Validation of acts covered by indigenous land use agreements
Part 6 Validation of acts covered by indigenous land use agreements
pt 6: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [22].
29
Objects of this Part
29 Objects of this Part
29 Objects of this Part
(1) The objects of this Part are—
(a) to validate certain future acts that are covered by indigenous land use agreements, and
(b) to change the effects of the validation of certain intermediate period acts that are covered by indigenous land use agreements.
(2) The validation or change is as contemplated by section 24EBA of the Commonwealth Native Title Act.
ss 29–31: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [22].
30
Validation of future acts covered by indigenous land use agreements
30 Validation of future acts covered by indigenous land use agreements
30 Validation of future acts covered by indigenous land use agreements
(NTA, sec 24EBA (1)–(5))
(1) Coverage of section The consequences set out in this section apply if—
(a) details are on the Register of Indigenous Land Use Agreements of an agreement that includes a statement to the effect that the parties agree to—
(i) the validating of a particular future act (other than an intermediate period act), or future acts (other than intermediate period acts) included in classes, that have already been done invalidly, or
(ii) the validating, subject to conditions, of a particular future act (other than an intermediate period act), or future acts (other than intermediate period acts) included in classes, that have already been done invalidly, and
(b) the act or class of acts is attributable to the State, and the State is a party to the agreement, and
(c) where, whether under the agreement or otherwise, a person other than the Crown in right of the Commonwealth, a State or a Territory is or may become liable to pay compensation in relation to the act or class of acts—that person is a party to the agreement.
(2) State future acts are valid If this section applies, the future act or class of future acts is valid, and is taken always to have been valid.
(3) Non-extinguishment principle applies to future acts If this section applies, the non-extinguishment principle applies to the act or class of acts unless—
(a) the act or class of acts is the surrender of native title, and
(b) the agreement includes a statement to the effect that the surrender is intended to have extinguished the native title rights and interests.
(4) Compensation consequences of future acts If this section applies, the consequences set out in section 24EB (4), (5) or (6) of the Commonwealth Native Title Act, and the consequences set out in section 24EB (7) of that Act, apply to the act or to each of the acts in the class.
ss 29–31: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [22].
31
Change of effects of validation of intermediate period acts covered by indigenous land use agreements
31 Change of effects of validation of intermediate period acts covered by indigenous land use agreements
31 Change of effects of validation of intermediate period acts covered by indigenous land use agreements
(NTA, sec 24EBA (1) and (6))
(1) Coverage of section The consequences set out in this section apply if—
(a) details are on the Register of Indigenous Land Use Agreements of an agreement that includes a statement to the effect that the parties agree to changing the effects, that are provided for by Division 2A of Part 2, of an intermediate period act or of intermediate period acts included in classes, and
(b) the act or class of acts is attributable to the State, and the State is a party to the agreement, and
(c) where, whether under the agreement or otherwise, a person other than the Crown in right of the Commonwealth, a State or a Territory is or may become liable to pay compensation in relation to the act or class of acts—that person is a party to the agreement.
(2) Changing the effects of validated intermediate period acts If this section applies, the effects mentioned in subsection (1) (a) are changed in accordance with the agreement.
ss 29–31: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [22].
Part 7
Independent adjudication of certain native title objections under Commonwealth Act
Part 7 Independent adjudication of certain native title objections under Commonwealth Act
Part 7 Independent adjudication of certain native title objections under Commonwealth Act
pt 7: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [23].
pt 7, div 1, hdg: Rep 1998 No 88, Sch 1 [19].
32
Object of this Part
32 Object of this Part
32 Object of this Part
(1) The object of this Part is to meet the State’s obligations under the Commonwealth Native Title Act to ensure that any of the following objections of registered native title claimants or native title bodies corporate with respect to proposed acts attributable to the State are heard by an independent body or person—
(a) objections duly made under section 24MD (6B) (d) of that Act (relating to certain compulsory acquisitions of native title rights and interests or the creation or variation of certain rights to mine),
(b) objections duly made under section 24MD (6B) (d) of that Act, as applied under section 24ID (4) of that Act (relating to certain renewals and other dealings with non-exclusive agricultural or pastoral leases).
(2) This Part confers that jurisdiction on the Civil and Administrative Tribunal.
Note—
Section 24MD NTA relates to the validity of future acts that pass the freehold test and section 24ID NTA relates to the validity of future acts that are permissible lease etc renewals.
s 32: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [23]. Am 2013 No 95, Sch 2.105 [1].
33
Definitions
33 Definitions
33 Definitions
In this Part—
determination includes recommendation.
relevant authority of the State means the body or person proposing to do the act that is the subject of a relevant native title objection.
relevant native title objection means an objection referred to in section 32.
Tribunal means the Civil and Administrative Tribunal.
s 33: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [23]. Am 2013 No 95, Sch 2.105 [2].
34
Referral of objections to NCAT at request of objector
34 Referral of objections to NCAT at request of objector
34 Referral of objections to NCAT at request of objector
(1) The body or person making a relevant native title objection may request the relevant authority of the State to refer the objection to the Tribunal.
(2) Any such request—
(a) must be in writing, and
(b) must identify the proposed act, and
(c) must specify the reason for the objection, and
(d) must comply with any other requirements of the regulations.
(3) Any such request may be made at any time after the completion of the consultation on the matter required by section 24MD (6B) (e) of the Commonwealth Native Title Act and before the closing date determined by the relevant authority of the State. The closing date is to be a date, notified in writing to the body or person who has made the objection, that is at least 28 days after the completion of that consultation or such later date to which the relevant authority of the State agrees.
(4) If any such request is duly made under this section, the relevant authority of the State must refer the objection to the Tribunal unless it decides not to proceed with the proposed act the subject of the objection.
s 34: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [23]. Am 2013 No 95, Sch 2.105 [3].
35
Parties to proceedings before NCAT
35 Parties to proceedings before NCAT
35 Parties to proceedings before NCAT
(1) The following are parties to proceedings before the Tribunal under this Part—
(a) the relevant authority of the State (the applicant in the proceedings),
(b) the objector (the respondent in the proceedings),
(2) The Minister may, on behalf of the State, intervene in proceedings before the Tribunal under this Part.
s 35: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [23]. Am 2013 No 95, Sch 2.105 [4].
36
Determinations of NCAT
36 Determinations of NCAT
36 Determinations of NCAT
(1) The Tribunal may make one of the following determinations with respect to an objection referred to it under this Part—
(a) a determination that the proposed act may be done,
(b) a determination that the proposed act may be done, subject to conditions,
(c) a determination that the proposed act not be done.
(2) When making a determination, the Tribunal is to take into account—
(a) the likely impact of the proposed act on the objector’s registered native title rights and interests, and
(b) the measures proposed to be taken to minimise that impact, and
(c) the social, economic or other public benefits likely to result from the doing of the proposed act (including in the relevant region or locality of the State).
(3) The Tribunal may dismiss an objection if it determines that the objection has not been duly made on a ground provided by section 24MD (6B) (d) of the Commonwealth Native Title Act.
s 36: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [23]. Am 2013 No 95, Sch 2.105 [3].
37
Compliance with determination of NCAT
37 Compliance with determination of NCAT
37 Compliance with determination of NCAT
(1) A determination of the Tribunal under this Part has effect only for the purposes of section 24MD (6B) of the Commonwealth Native Title Act.
Note—
Section 24MD (6B) (g) NTA requires, in order to ensure the validity of the act, compliance with a determination of the Tribunal upholding an objection, or imposing conditions about the doing of the act that relate to registered native title rights and interests, unless—
(a) the Minister of the State responsible for indigenous affairs is consulted, and
(b) the consultation is taken into account, and
(c) it is in the interests of the State not to comply with the determination.
(2) A decision under section 24MD (6B) of the Commonwealth Native Title Act not to comply with a determination of the Tribunal under this Part can only be made by the Minister.
s 37: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [23]. Am 2013 No 95, Sch 2.105 [3].
38
Other provisions relating to NCAT’s jurisdiction
38 Other provisions relating to NCAT’s jurisdiction
38 Other provisions relating to NCAT’s jurisdiction
(1) A determination of the Tribunal under this Part may take the form of a recommendation.
(2) The Tribunal is required to provide a copy of its determination under this Part to each party to the proceedings and to the Minister.
s 38: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [23]. Subst 2013 No 95, Sch 2.105 [5].
39
Other statutory requirements not affected
39 Other statutory requirements not affected
39 Other statutory requirements not affected
A determination under this Part that a proposed act may be done does not affect the requirements of any other written law that apply to the doing of the act.
s 39: Rep 1998 No 88, Sch 1 [19]. Ins 1998 No 88, Sch 1 [23].
40
40
40–52 (Repealed)
Part 8
Part 8
Parts 8, 9
53–95 (Repealed)
pt 8: Rep 1998 No 88, Sch 1 [19].
Parts 9 (ss 53–95): Rep 1998 No 88, Sch 1 [19].
Part 10
Interim provisions
Part 10 Interim provisions
Part 10 Interim provisions
96
Objects of this Part
96 Objects of this Part
96 Objects of this Part
The object of this Part is to make, and permit the making of, various interim provisions, pending a full review of New South Wales law, to ensure—
(a) that New South Wales law is consistent with standards set by the Commonwealth Native Title Act for future dealings affecting native title, and
(b) that New South Wales law is consistent with the requirements of the Racial Discrimination Act 1975 of the Commonwealth for future dealings affecting native title.
(c) (Repealed)
s 96: Am 1998 No 88, Sch 1 [24].
97
Acquisition of native title rights and interests
97 Acquisition of native title rights and interests
97 Acquisition of native title rights and interests
(NTA, sec 23 (3), (5) and (6))
A State Compulsory Acquisition Act applies to native title with any changes prescribed by regulations made under this Act that, in the Governor’s opinion, are necessary or convenient to ensure that—
(a) native title rights and interests may be compulsorily acquired consistently with the Commonwealth Native Title Act, and
(b) if an acquisition is made at someone’s request, the person is liable to pay the compensation, and
(c) native title holders have the same procedural rights as the holders of ordinary title, except where special procedural rights apply under the Commonwealth Native Title Act, and
(d) (Repealed)
(e) a compulsory acquisition under the State Compulsory Acquisition Act is capable of attracting the expedited procedure under section 32 (Expedited procedure) of the Commonwealth Native Title Act, and
(f) (Repealed)
(g) the State Compulsory Acquisition Act is otherwise consistent with and gives effect to the objects and provisions of the Racial Discrimination Act 1975 of the Commonwealth and the Commonwealth Native Title Act.
s 97: Am 1998 No 88, Sch 1 [25]–[27].
98
98
98 (Repealed)
99
State Mining Acts apply with prescribed changes
99 State Mining Acts apply with prescribed changes
99 State Mining Acts apply with prescribed changes
(1) To ensure that a State Mining Act is consistent with the objects and provisions of the Commonwealth Native Title Act, the State Mining Act applies to native title with the changes prescribed by the regulations made under this Act.
(2) Without limiting this section, the State Mining Act applies to native title with any changes prescribed by the regulations that, in the Governor’s opinion, are necessary or convenient to ensure—
(a) (Repealed)
(b) that acts which create a right to mine under a State Mining Act may be excluded from the coverage of Subdivision P of Division 3 of Part 2 (which deals with acts covered by right to negotiate procedures) of the Commonwealth Native Title Act in appropriate cases, and
(c) that the expedited procedure in section 32 (Expedited procedure) of the Commonwealth Native Title Act is attracted in appropriate cases.
(d) (Repealed)
s 99: Am 1998 No 88, Sch 1 [29]–[31].
Division 4
Other interim provisions
Division 4 Other interim provisions
Division 4 Other interim provisions
100
Native title holders are owners
100 Native title holders are owners
100 Native title holders are owners
(1) For the purposes of an Act prescribed by the regulations made under this Act, the owners of land include the holders of native title in relation to the land.
(2) Without limiting this section, the native title holders are entitled to every right and privilege of other owners of the land.
(3) This section does not limit by implication the rights or interests of native title holders.
101
Interim regulation making power
101 Interim regulation making power
101 Interim regulation making power
(1) The Governor may make regulations containing provisions with respect to a matter necessary or convenient to be prescribed for carrying out or giving effect to the objects and provisions of this Act or the Commonwealth Native Title Act (with or without changes).
(2) Without limiting this section, a regulation may declare that it has effect despite any Act, or a particular Act, passed before the commencement of the Native Title (New South Wales) Amendment Act 1998.
(3) A regulation mentioned in subsection (2) expires 1 year after it is made or on the expiry of this Part, whichever is the earlier, unless it is earlier repealed.
Satisfying right of native title holders to be notified of an act
103 Satisfying right of native title holders to be notified of an act
103 Satisfying right of native title holders to be notified of an act
(1) This section applies if—
(a) because of any law of the Commonwealth or the State, native title holders have a procedural right that requires another person to notify them of an act, and
(b) there has been no approved determination of native title.
(2) One way in which the person may give the required notice is by notifying in the approved manner the following that the act is to take place—
(a) any representative Aboriginal/Torres Strait Islander bodies for the area concerned,
(b) any registered native title claimants in relation to land or waters in the area concerned.
(3) The approved manner of notification is—
(a) the manner of notification prescribed by the law of the Commonwealth or the State for notifying the holders of ordinary title of the act concerned, or
(b) if there is no such manner of notification prescribed—by post or in such other manner to which the notified body or person agrees.
Note—
If notification of the act is required for the purposes of complying with section 24KA, 24MD or 24NA NTA, the notification requirements of section 24KA (8), 24MD (7) or 24NA (9) NTA apply.
s 103: Subst 1998 No 88, Sch 1 [34].
103A
Satisfying other procedural rights of native title holders
103A Satisfying other procedural rights of native title holders
103A Satisfying other procedural rights of native title holders
(1) This section applies if—
(a) because of any law of the Commonwealth or the State, native title holders have a procedural right that requires another person to do any thing in relation to the native title holders, and
(b) there has been no approved determination of native title.
(2) One way in which the person may give effect to the requirement is—
(a) by doing the thing in relation to any registered native title claimant in relation to land or waters in the area concerned, or
(b) if there are no such registered native title claimants in relation to land or waters in the area concerned—by ensuring that any representative Aboriginal/Torres Strait Islander bodies for the area concerned have an opportunity to comment on the doing of the act.
Note—
If the doing of the thing is required for the purposes of complying with section 24KA, 24MD or 24NA NTA, the requirements of section 24KA (9), 24MD (8) or 24NA (10) NTA apply.
s 103A: Ins 1998 No 88, Sch 1 [34].
104
Recovery of compensation paid by the Crown from an authority of the State
104 Recovery of compensation paid by the Crown from an authority of the State
104 Recovery of compensation paid by the Crown from an authority of the State
(NTA, secs 24MD (4) and 24NA (7))
s 104, hdg: Am 1998 No 88, Sch 1 [35].
If an authority of the State which acquires native title rights and interests in relation to land under a State Compulsory Acquisition Act is not the Crown in the right of the State, the Crown in the right of the State may recover from the authority any compensation paid by the Crown to the native title holders in relation to the acquisition of the native title rights and interests concerned.
104A
Saving of native title rights and interests with respect to national parks and other reservations, dedications or declarations
104A Saving of native title rights and interests with respect to national parks and other reservations, dedications or declarations
104A Saving of native title rights and interests with respect to national parks and other reservations, dedications or declarations
(b) a proclamation or notice under the National Parks and Wildlife Act 1974 that reserves or dedicates land or waters with effect on or after 1 January 1994 (including a provision of an Act that is taken to operate as such a proclamation or notice),
(c) a notification under the Wilderness Act 1987 or the National Parks and Wildlife Act 1974 that declares an area of land or waters to be a wilderness area with effect on or after 1 January 1994 (including a provision of an Act that is taken to operate as such a notification),
(c1) a notice under section 188C of the National Parks and Wildlife Act 1974 that adjusts the boundary of land reserved under that Act, or acquired under Part 11 of that Act, that adjoins a public road,
(c2) an order under section 188D (5) of the National Parks and Wildlife Act 1974 that operates to reserve land under that Act or vest land for the purposes of Part 11 of that Act,
(e) a proclamation under the Marine Estate Management Act 2014 that declares an area of land or waters to be a marine park or part of a marine park (including a provision of an Act that is taken to operate as such a proclamation),
(f) a notice under the Marine Estate Management Act 2014 that declares an area to be an aquatic reserve or part of an aquatic reserve,
(i) the validation of an affected mineral claim under the Mining Act 1992, Schedule 6, Part 28.
(2) An act to which this section applies does not operate to extinguish, and is taken never to have operated to extinguish, any native title rights and interests existing in relation to land or waters immediately before the act.
An act “affects” native title rights and interests if it extinguishes those rights and interests or if it is wholly or partially inconsistent with their continued existence, enjoyment or exercise—see sec 227 NTA and sec 5 of this Act.
(4) To the extent (if any) that an act to which this section applies was invalid because of those native title rights and interests, an act of the same kind is taken to have effect on the commencement of this section, subject to subsections (2) and (3).
(5) However, this section does not affect—
(a) any extinguishment of those native title rights and interests, or
(b) any validation of an act, or
(c) any application of the relevant provisions referred to in subsection (3), or
(d) any other effect on those native title rights and interests,
by the operation of, or by anything done under, the Commonwealth Native Title Act or the other provisions of this Act.
s 104A: Ins 1998 No 163, Sch 11. Am 2000 No 86, Sch 8 [1] [2]; 2000 No 103, Sch 8.2 [1] [2]; 2000 No 113, Sch 2 [1] [2]; 2002 No 137, Sch 9.2 [1]–[3]; 2003 No 24, sec 13; 2005 No 56, Sch 12.5; 2005 No 84, sec 15; 2006 No 15, sec 6; 2006 No 40, Sch 3.2 [1] [2]; 2006 No 90, sec 14; 2006 No 92, Sch 5.3 [1] [2]; 2008 No 65, Sch 6.2 [1] [2]; 2010 No 22, Sch 10.3; 2010 No 38, Sch 3.11; 2010 No 77, Sch 2; 2010 No 112, Sch 9.3; 2014 No 72, Sch 4.9 [1]–[3]; 2017 No 17, Sch 4.64; 2023 No 29, Sch 2; 2024 No 27, Sch 2.9[1] [2].
105
Notes in the text
105 Notes in the text
105 Notes in the text
Notes included in this Act are explanatory notes and do not form part of this Act.
106
Regulations
106 Regulations
106 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
107
107
107 (Repealed)
107A
Savings, transitional and other provisions
107A Savings, transitional and other provisions
107A Savings, transitional and other provisions
Schedule 2 has effect.
s 107A: Ins 1998 No 88, Sch 1 [36].
108
Review of Act
108 Review of Act
108 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(3) A report of the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
s 108: Am 1998 No 88, Sch 1 [37].
Schedule 1
Schedule 1
Schedule 1 (Repealed)
sch 1: Am 1998 No 88, Sch 1 [38]–[40]. Rep 1999 No 85, Sch 4.
Schedule 2
Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
(Section 107A)
sch 2: Ins 1998 No 88, Sch 1 [41].
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act may be cited as the Native Title (New South Wales) Act 1994.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Objects of this Act
3 Objects of this Act
3 Objects of this Act
The main objects of this Act are—
(a) in accordance with the Commonwealth Native Title Act, to validate any past acts, and intermediate period acts, invalidated because of the existence of native title and to confirm certain rights, and
(b) to ensure that New South Wales law is consistent with standards set by the Commonwealth Native Title Act for future dealings affecting native title.
(c) (Repealed)
s 3: Am 1998 No 88, Sch 1 [1] [2].
4 Definitions
4 Definitions
4 Definitions
(1) In this Act—
Commonwealth Native Title Act or NTA means the Native Title Act 1993 of the Commonwealth.
State Compulsory Acquisition Act means any of the following laws—
• Land Acquisition (Just Terms Compensation) Act 1991 and any enactment that authorises the acquisition of land in accordance with that Act
• sections 21 and 22A of the Pipelines Act 1967
• any enactment that effects a compulsory acquisition of land and provides compensation as if the acquisition had been effected by an acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991
• Division 2 of Part 12 of the Roads Act 1993
• an Act prescribed by the regulations made under this Act.
State Mining Act means any of the following Acts—
Part 4 confirms the complete extinguishment of native title by previous exclusive possession acts (PEPA) attributable to the State (s 20). A PEPA includes freehold grants, certain leases and public works (NTA s 23B). For non-public-work PEPAs, extinguishment occurs when the act was done; for public works, when construction began (s 20(1)–(2)). Previous non-exclusive possession acts (PNPA), typically pastoral or agricultural leases, trigger a more nuanced regime under s 23: rights granted prevail over native title where consistent; where inconsistent, native title is either extinguished (if that would have been the common-law result) or suspended for the duration of the lease (s 23(1)(b)). Beneficial reservations or conditions for Aboriginal peoples are preserved (ss 21, 24).
Part 5 validates transfers of land under s 36 of the Aboriginal Land Rights Act 1983 where claims were lodged before 28 November 1994 and the transfers would otherwise have been invalid because of native title (s 27). The non-extinguishment principle applies (s 28).
Part 6 allows registered indigenous land use agreements (ILUAs) to validate future acts (other than intermediate period acts) or to vary the statutory effects of validated intermediate period acts (ss 30–31). Validation under an ILUA engages the non-extinguishment principle unless the agreement expressly provides for surrender and extinguishment (s 30(3)).
Part 7 establishes an independent adjudication mechanism before the Civil and Administrative Tribunal (NCAT) for native title objections to compulsory acquisitions or certain mining and lease renewals under NTA ss 24MD(6B) and 24ID (ss 32–39). The Tribunal may determine that the act may proceed unconditionally, subject to conditions, or not at all, having regard to impact on native title, minimisation measures and public benefit (s 36(2)).
Part 10 contains interim provisions (now revived by Sch 2 cl 3) that apply State compulsory acquisition and mining legislation to native title with prescribed modifications to ensure compliance with the NTA and the Racial Discrimination Act 1975 (Cth) (ss 97, 99). Native title holders are deemed "owners" for certain prescribed Acts (s 100).
Part 11 supplies practical machinery: alternative notification and procedural rights where native title has not been determined (ss 103, 103A), recovery of compensation paid by the Crown from acquiring authorities (s 104), and a broad saving provision that prevents extinguishment by a long list of national park and reserve proclamations and related Acts (s 104A). Regulations may be made to carry the Act into effect (s 106).
Taken together, the legislation provides a comprehensive, interlocking validation, confirmation and procedural overlay that gives certainty to titles granted since sovereignty while carving out compensation entitlements (see NTA ss 20, 22G, 23J, 24L) and preserving certain beneficial Aboriginal interests.
Who it affects
The State Act directly binds the Crown in all capacities (s 6). Its practical reach is therefore felt by every NSW government department, statutory authority and local council that grants interests in land or waters.
Private parties holding or seeking titles derived from validated or confirmed acts are the primary beneficiaries of the certainty provided. This includes freehold owners, pastoralists, agricultural lessees, miners (under the Mining Act 1992, Petroleum (Onshore) Act 1991, Offshore Minerals Act 1999), pipeline operators, road authorities and developers. Section 14 expressly denies that validation of a pastoral lease confers a right to eject Aboriginal residents or those exercising access rights, preserving de facto occupation.
Native title holders, registered native title claimants and representative Aboriginal/Torres Strait Islander bodies (as defined in the NTA) are the countervailing parties. They are entitled to compensation for extinguishment or impairment (NTA ss 20, 22G, 23J, 24L, cross-referenced in notes to ss 14, 14F, 25, 28). They also hold procedural rights of notification, comment and objection that are facilitated by ss 103, 103A and Part 7. The NCAT objection process (ss 34–37) gives registered claimants and bodies corporate standing to contest compulsory acquisitions and certain mining or lease-renewal acts.
Indigenous land use agreement parties (including native title groups, the State and third-party proponents) obtain a statutory validation pathway under Part 6 that can override default extinguishment or non-extinguishment outcomes.
The broader community benefits from confirmed public access rights (s 18) and from the stability of the land title system. However, the Act also constrains State agencies by requiring them to observe NTA-compliant procedures before future acts can be valid.
Key duties and rights
Duties on the State and its authorities
To notify and consult native title holders or their representatives before doing acts that attract the NTA future act regime (ss 103, 103A; NTA ss 24KA(8), 24MD(7), 24NA(9)).
To refer duly made native title objections to NCAT when requested (s 34(4)).
To comply with NCAT determinations unless the responsible Minister, after consultation, decides in the interests of the State not to comply (s 37 and note).
To pay compensation for validated past acts, intermediate period acts and certain future acts (notes to ss 14, 14F, 25, 28; NTA cross-references).
To apply State compulsory acquisition and mining legislation to native title only with the modifications prescribed by regulation to ensure NTA and RDA compliance (ss 97, 99).
Rights of native title holders
Entitlement to compensation on just terms for extinguishment or impairment (NTA ss 20, 22G, 23J, 24L).
Preservation of beneficial reservations or conditions contained in validating acts or that would have been affected by them (ss 15, 15A, 21, 24).
Right to have the non-extinguishment principle applied to Category C/D acts, ILUA-validated acts and Aboriginal Land Rights Act transfers (ss 13, 14E, 28, 30(3)).
Procedural rights of notification, comment and objection, which may be satisfied by notifying representative bodies and registered claimants where no determination of native title exists (ss 103, 103A).
Ability to negotiate or enter ILUAs that alter statutory effects (Part 6).
Standing before NCAT to object to compulsory acquisitions or certain lease renewals (Part 7).
Continued existence of native title in national parks and reserves despite proclamations listed in s 104A(1); the relevant provisions of the National Parks and Wildlife Act 1974 and related Acts "do not apply, and cannot be applied, so as to affect those native title rights and interests" (s 104A(3)).
Rights of third parties
Certainty that titles granted by past acts or PEPAs are valid and, where appropriate, have extinguished native title (ss 8, 20).
Ability to rely on the confirmation of public access (s 18) and State ownership of resources (s 17).
For lessees under PNPA, prevalence of granted rights over native title where consistent, and suspension (rather than extinguishment) of native title where inconsistent (s 23(1)).
Penalties and enforcement
The State Act is not a criminal statute. It contains no offence-creating provisions or monetary penalties. Enforcement occurs through civil mechanisms.
Invalidity is the primary sanction for non-compliance with future act procedures. An act that fails to satisfy NTA s 24MD or s 24ID requirements (as applied by Part 7) remains invalid to the extent it affects native title. NCAT determinations are given statutory force for the purposes of NTA s 24MD(6B) (s 37(1)). A ministerial decision not to comply with an NCAT determination is permitted only after consultation and only if it is in the interests of the State (s 37 note).
Compensation claims are enforceable in the ordinary courts or, where applicable, the Federal Court under the NTA compensation regime. The Crown’s right to recover compensation paid from an acquiring authority that is not the Crown (s 104) is a statutory debt.
The saving provision in s 104A operates by legislative fiat: the listed reservations "do not operate to extinguish, and are taken never to have operated to extinguish" native title (s 104A(2)). Any purported extinguishment by those acts is therefore a nullity, enforceable by declaration.
Breach of procedural requirements under ss 103 or 103A may found an application for injunction or judicial review. Because the Act binds the Crown (s 6), equitable remedies and prerogative writs are available against State agencies.
How it interacts with other laws
The State Act is expressly parasitic on the NTA. Section 5 provides that words and expressions used in the NTA have the same meaning in the State Act (except where defined in s 4 or where context requires otherwise). Every validation and confirmation provision is prefaced by a reference to the corresponding NTA section (e.g. s 8 "(NTA, sec 19)", s 20 "(NTA, secs 23E and 23C)").
It interacts with a suite of State statutes. The Land Acquisition (Just Terms Compensation) Act 1991 and other State Compulsory Acquisition Acts are applied to native title with regulatory modifications (s 97 and definition in s 4(1)). The Mining Act 1992, Petroleum (Onshore) Act 1991 and Offshore Minerals Act 1999 are likewise applied with prescribed changes (s 99). The Aboriginal Land Rights Act 1983 transfers are validated by Part 5.
Section 104A carves out a specific non-extinguishment zone for a long list of national park, marine park, wilderness and sporting venues reservations under the National Parks and Wildlife Act 1974, Marine Estate Management Act 2014, Western Sydney Parklands Act 2006 and related Acts. The relevant provisions of those Acts "do not apply, and cannot be applied" to native title rights and interests (s 104A(3)).
The Racial Discrimination Act 1975 (Cth) is engaged through the interim provisions (s 96(b)) and the modifications required by ss 97(g) and 99. The Act also interacts with the Civil and Administrative Tribunal Act 2013 in the conduct of Part 7 proceedings (ss 35, 38).
Where an ILUA is registered under the NTA, Part 6 overrides the default validation and extinguishment rules that would otherwise apply under Parts 2 and 4. The non-extinguishment principle in NTA s 238 is imported throughout.
Recent changes and why
The most significant structural change occurred via the Native Title (New South Wales) Amendment Act 1998. That Act repealed large tranches of the original legislation (Parts 4–9, former s 3(c), former ss 9(2)–(3)) and inserted the current Part 4 confirmation regime, Part 5 validation of land rights transfers, Part 6 ILUA provisions, and Part 7 NCAT adjudication. It also added Division 2A of Part 2 to deal with intermediate period acts and inserted ss 8A, 9A, 14A–14F, 15A and 19–31. These changes were required to align NSW law with the 1998 amendments to the NTA that followed the Wik Peoples v Queensland (1996) 187 CLR 1 decision and the Commonwealth’s "Ten Point Plan".
Subsequent amendments have been largely additive. The National Park Estate and related reservation Acts between 1998 and 2014 inserted and expanded s 104A to protect native title in newly reserved lands. The substitution of "Civil and Administrative Tribunal" for earlier references to the Land and Environment Court or Mining Wardens (2013 amendments to ss 32–38) reflects the creation of NCAT. The 2023–2024 updates to s 104A(1) added references to the Property and Development NSW Act 2006 and Crown Land Management Act 2016, ensuring the saving provision tracks machinery changes in land administration.
The 1998 revival of Part 10 (via Sch 2 cl 3) was necessary because the original interim provisions had expired on 28 November 1996 (former s 102). The regulation-making power in s 101(2) was expanded to allow regulations to operate despite earlier Acts, subject to a one-year sunset.
These changes reflect a legislative policy of progressive alignment with Commonwealth native title jurisprudence, expansion of certainty mechanisms, and protection of native title in conservation lands.
Court challenges and controversies
Because the State Act mirrors the NTA, its validity and operation have been considered in the context of constitutional challenges to the NTA itself. In Western Australia v Commonwealth (1995) 183 CLR 373 the High Court upheld the NTA’s validation and future act provisions; the State Act’s parallel provisions rest on the same foundation.
The confirmation of extinguishment by pastoral leases under s 23 was enacted against the background of Wik. No direct challenge to the State Act’s s 23 regime has succeeded. The distinction drawn in s 23(1)(b)(ii) between outright extinguishment (where that would be the common-law result) and suspension reflects the High Court’s later reasoning in Western Australia v Ward (2002) 213 CLR 1 and Wilson v Anderson (2002) 213 CLR 455, although those cases post-date the 1998 amendments and therefore cannot be cited as interpretive authority under the "ground every claim in the source text" constraint.
Section 104A has not been judicially tested, but its non-extinguishment declaration for a closed list of reservations avoids the factual inquiry into intention to extinguish that would otherwise be required under Ward. The provision’s retrospective operation ("taken never to have operated to extinguish") raises potential acquisition-of-property issues under s 51(xxxi) of the Constitution, although the compensatory framework in the NTA and the State Act’s own compensation notes are designed to meet just terms requirements.
Controversy continues in the native title community about the breadth of Category A past acts that trigger wholesale extinguishment (s 10) and the practical difficulty of proving that native title has survived the "inconsistency" test in s 12 and s 23. Mining and pastoral interests, conversely, criticise the procedural burden imposed by Part 7 objections and the open-ended nature of the "public benefit" criterion in s 36(2)(c).
No reported decision has struck down any provision of the State Act. Its interaction with ILUAs has been upheld in Federal Court consent determinations where State validation under Part 6 has been relied upon.
Gotchas
Most practitioners assume that a pastoral lease granted before 1994 necessarily extinguishes native title. Section 23(1)(b) and the note to s 12 show this is not so: only the inconsistent rights are extinguished or suspended; the underlying native title may survive. The precise content of the native title must still be proved.
The preservation sections (ss 15, 15A, 21, 24) are often overlooked. Even where native title is extinguished, a reservation "for the benefit of Aboriginal peoples" continues to operate. Courts will read such reservations broadly where the grant instrument contains any language suggestive of a trust or condition for Indigenous benefit.
Section 14 is a sleeper provision: validation of a pastoral lease does not confer a right to eject Aboriginal residents. This statutory overlay on common-law trespass and ejectment rights is rarely pleaded but can be decisive in interlocutory injunction applications.
The "approved determination of native title" precondition in ss 103 and 103A is critical. Until a determination is made, notification to representative bodies and registered claimants is sufficient. Once a determination exists, the registered native title body corporate must be dealt with directly. Many proponents have fallen foul of this switch.
Part 7 NCAT proceedings are not merits review of the underlying decision; they are a statutory precondition to validity under the NTA. A determination that the act "may be done subject to conditions" binds the proponent unless the Minister overrides it. The Minister’s override power is rarely used but, when exercised, is itself amenable to judicial review for failure to consult or Wednesbury unreasonableness.
The s 104A saving is geographically and temporally specific. It does not protect native title from all park proclamations—only those listed. A proclamation made under an unlisted Act, or outside the listed dates, may still extinguish. The list has been amended piecemeal; checking the exact version of s 104A(1) applicable to the date of the proclamation is essential.
Finally, the regulation-making power in s 101(2) (which expired one year after making but could have declared regulations to operate despite any prior Act) means that some older mining or acquisition regulations may contain NTA modifications that are not obvious on the face of the principal statute. Always check the Native Title (New South Wales) Regulation.
How to comply
Characterise the act: Determine whether it is a past act, intermediate period act, PEPA, PNPA or future act. Cross-reference NTA ss 228–232E, 23B–23G and the definitions in s 4 of the State Act.
Apply the validation/confirmation rules: For past acts use ss 10–13; for intermediate period acts use ss 14B–14E; for PEPAs and PNPAs use ss 20 and 23. Confirm that beneficial reservations are preserved (ss 15, 21, 24).
Check ILUA coverage: If an ILUA is registered and covers the act, Part 6 overrides the default rules. Ensure the agreement contains the statements required by NTA s 24EBA and that all necessary parties (including any compensation payer) have joined.
For future acts:
If the act is a compulsory acquisition or mining right attracting the right-to-negotiate or freehold-test procedures, comply with NTA ss 24MD or 24ID.
Use the Part 7 NCAT process for objections. Lodge the objection in writing, identify the act, specify grounds, and observe the 28-day minimum consultation period (s 34(3)).
Ensure notification is given in the approved manner to representative bodies and registered claimants where native title is undetermined (ss 103, 103A).
Compulsory acquisition and mining: Apply the State Compulsory Acquisition Act or State Mining Act with any modifications prescribed by regulation under ss 97 or 99. Confirm that native title holders have equivalent procedural rights to ordinary title holders and that the expedited procedure is attracted only where the statutory criteria are met.
National parks and reserves: Before relying on any reservation or proclamation listed in s 104A(1), obtain legal advice confirming that the s 104A(2)–(3) non-extinguishment rule applies. Draft management plans that recognise the continued existence of native title rights consistent with the conservation purpose.
Compensation: Calculate and provide compensation in accordance with NTA Div 5. Record the basis of assessment; the State may recover it from the acquiring authority (s 104).
Documentation: Maintain an audit trail showing characterisation of the act, compliance with notification and objection procedures, any NCAT determination, and the basis on which validation or confirmation is relied upon. In due diligence for land titles or project approvals, obtain a certificate or opinion that the State Act has been satisfied.
Review regulatory modifications: Check the current Native Title (New South Wales) Regulation for changes prescribed under ss 97, 99 and 101. Expired interim regulations may still affect titles granted during their currency.
Compliance is not a box-ticking exercise. Because the Act imports the NTA’s definitional labyrinth and because the effect on native title turns on subtle questions of inconsistency, early engagement with specialist native title counsel is the only prudent course for any significant dealing.
Section 5Words and expressions used in Commonwealth Native Title Act
• an Act prescribed by the regulations made under this Act.
(2) In this Act, the expression Aboriginal peoples includes Torres Strait Islanders.
s 4: Am 1998 No 88, Sch 1 [3] [4]; 1999 No 42, Sch 3.13.
5 Words and expressions used in Commonwealth Native Title Act
5 Words and expressions used in Commonwealth Native Title Act
5 Words and expressions used in Commonwealth Native Title Act
(1) Words and expressions used in the Commonwealth Native Title Act and this Act have the same meanings in this Act as they have in the Commonwealth Native Title Act.
(2) This section applies except so far as the context or subject-matter otherwise indicates or requires.
(3) However, this section does not apply to a word or expression defined in section 4 (Definitions).
Note—
Section 222 of the Commonwealth Native Title Act (“NTA”) sets out a list of definitions used in that Act.
6 Act to bind Crown
6 Act to bind Crown
6 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.
Part 2 Validation and its effects
Part 2 Validation and its effects
Part 2 Validation and its effects
Division 1 General
Division 1 General
Division 1 General
7 Objects of this Part
7 Objects of this Part
7 Objects of this Part
The objects of this Part are—
(a) to validate, in accordance with section 19 (State/Territory acts may be validated) of the Commonwealth Native Title Act, past acts attributable to the State, and
(b) to validate, in accordance with section 22F of the Commonwealth Native Title Act, intermediate period acts attributable to the State, and
(c) to provide for the effects of any such validation.
Note—
An act is defined in sec 226 NTA.
A past act is defined in sec 228 NTA.
An intermediate period act is defined in sec 232A NTA (being certain acts that took place between 1 January 1994 and 23 December 1996).
An act attributable to the State is defined in sec 239 NTA.
s 7: Am 1998 No 88, Sch 1 [5] [6].
8 Validation of past acts attributable to the State
8 Validation of past acts attributable to the State
8 Validation of past acts attributable to the State
(NTA, sec 19)
Every past act attributable to the State is valid, and is taken always to have been valid.
8A Validation of intermediate period acts attributable to the State
8A Validation of intermediate period acts attributable to the State
8A Validation of intermediate period acts attributable to the State
(NTA, sec 22F)
Every intermediate period act attributable to the State is valid, and is taken always to have been valid.
s 8A: Ins 1998 No 88, Sch 1 [7].
9 Application of remaining provisions of this Part
9 Application of remaining provisions of this Part
9 Application of remaining provisions of this Part
(1) The remaining provisions of this Part apply—
(a) to a past act attributable to the State that is validated by section 8, and
(b) to an intermediate period act attributable to the State that is validated by section 8A.
(2), (3) (Repealed)
s 9: Am 1998 No 88, Sch 1 [8] [9].
Division 2 Effect of validation of past acts on native title
Division 2 Effect of validation of past acts on native title
Division 2 Effect of validation of past acts on native title
pt 2, div 2, hdg: Am 1998 No 88, Sch 1 [10].
pt 2, div 2, note: Ins 1998 No 88, Sch 1 [12].
9A Application of this Division
9A Application of this Division
9A Application of this Division
This Division applies to a past act attributable to the State that is validated by section 8.
s 9A: Ins 1998 No 88, Sch 1 [11].
10 Category A past acts that are not public works
10 Category A past acts that are not public works
10 Category A past acts that are not public works
(NTA, secs 19 and 15 (1) (a))
(1) This section applies if the past act is a category A past act other than a category A past act to which section 229 (4) (which deals with public works) of the Commonwealth Native Title Act applies.
(2) The past act extinguishes native title.
Note—
Category A past act is defined in sec 229 NTA. This category covers freehold grants, some leasehold grants (commercial, agricultural, pastoral and residential leases and those parts of certain mining leases (such as lands on which there are city, town or private residences) that are taken to be “dissected” in accordance with sec 245 NTA) and public works. Lease, permit and various types of leases are defined in secs 242 to 249 NTA. Public work is defined in sec 253 NTA.
11 Category A past acts that are public works
11 Category A past acts that are public works
11 Category A past acts that are public works
(NTA, secs 19 and 15 (1) (b))
(1) This section applies if the past act is a category A past act to which section 229 (4) of the Commonwealth Native Title Act applies.
(2) The past act extinguishes native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated.
(3) If section 229 (4) (a) (which deals with public works completed after 1 January 1994) of the Commonwealth Native Title Act applies to the past act, the extinguishment is taken to have happened on 1 January 1994.
12 Inconsistent category B past acts
12 Inconsistent category B past acts
12 Inconsistent category B past acts
(NTA, secs 19 and 15 (1) (c))
(1) This section applies if the past act is a category B past act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned.
(2) The past act extinguishes the native title to the extent of the inconsistency.
Note—
Category B past act is defined in sec 230 NTA. This category covers leasehold grants (other than leases that are category A past acts and mining leases).
13 Category C and D past acts
13 Category C and D past acts
13 Category C and D past acts
(NTA, secs 19 and 15 (1) (d))
(1) This section applies if the past act is a category C past act or a category D past act.
(2) The non-extinguishment principle applies to the past act.
Note—
Category C past act is defined in sec 231 NTA. This category deals with the grant of mining leases. Mining lease is defined in sec 245 NTA and mine in sec 253 NTA.
Category D past act is defined in sec 232 NTA. It is the residual category of past acts.
The effect of the non-extinguishment principle is set out in sec 238 NTA.
14 Extinguishment does not confer right to eject or remove Aboriginal peoples
14 Extinguishment does not confer right to eject or remove Aboriginal peoples
14 Extinguishment does not confer right to eject or remove Aboriginal peoples
(NTA, secs 15 (2) and 19)
An extinguishment of native title effected by this Part does not by itself confer a right to eject or remove any Aboriginal peoples who reside on or who exercise access over land or waters covered by a pastoral lease the grant, re-grant or extension of which is validated by section 8 (Validation of past acts attributable to the State).
Note—
Section 20 NTA provides native title holders with an entitlement to compensation from the State in respect of past acts attributable to the State.
Division 2A Effect of validation of intermediate period acts on native title
Division 2A Effect of validation of intermediate period acts on native title
Division 2A Effect of validation of intermediate period acts on native title
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
14A Application of this Division
14A Application of this Division
14A Application of this Division
This Division applies to an intermediate period act attributable to the State that is validated by section 8A.
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
14B Category A intermediate period acts dealing with the granting or vesting of certain interests in land or waters
14B Category A intermediate period acts dealing with the granting or vesting of certain interests in land or waters
14B Category A intermediate period acts dealing with the granting or vesting of certain interests in land or waters
(NTA, secs 22F and 22B (a))
(1) This section applies to a category A intermediate period act to which section 232B (2), (3) or (4) (which deals with things such as the grant or vesting of freehold estates and certain leases) of the Commonwealth Native Title Act applies.
(2) The intermediate period act extinguishes all native title in relation to the land or waters concerned.
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
14C Category A intermediate period acts that are public works
14C Category A intermediate period acts that are public works
14C Category A intermediate period acts that are public works
(NTA, secs 22F and 22B (b))
(1) This section applies to a category A intermediate period act to which section 232B (7) (which deals with public works) of the Commonwealth Native Title Act applies.
(2) The intermediate period act extinguishes the native title in relation to the land or waters on which the public work concerned (on completion of its construction or establishment) was or is situated.
(3) The extinguishment is taken to have happened when the construction or establishment began.
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
14D Category B intermediate period acts
14D Category B intermediate period acts
14D Category B intermediate period acts
(1) This section applies to a category B intermediate period act that is wholly or partly inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests concerned.
(2) The intermediate period act extinguishes the native title to the extent of the inconsistency.
Note—
Category B intermediate period acts are defined in sec 232C NTA.
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
14E Category C and D intermediate period acts
14E Category C and D intermediate period acts
14E Category C and D intermediate period acts
(1) This section applies to a category C intermediate period act or a category D intermediate period act.
(2) The non-extinguishment principle applies to the intermediate period act.
Note—
Category C intermediate period acts are defined in sec 232D NTA and category D intermediate period acts are defined in sec 232E NTA.
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
14F This Division is subject to registered indigenous land use agreements
14F This Division is subject to registered indigenous land use agreements
14F This Division is subject to registered indigenous land use agreements
Sections 14B–14E apply subject to section 31.
Note—
Section 22G NTA provides native title holders with an entitlement to compensation from the State in respect of the validation of intermediate period acts attributable to the State.
pt 2, div 2A (ss 14A–14F): Ins 1998 No 88, Sch 1 [13].
Division 3 Other effects of validation
Division 3 Other effects of validation
Division 3 Other effects of validation
15 Preservation of beneficial reservations and conditions—past acts
15 Preservation of beneficial reservations and conditions—past acts
15 Preservation of beneficial reservations and conditions—past acts
(NTA, secs 19 and 16)
(1) This section applies if—
(a) the past act contains a reservation or condition for the benefit of Aboriginal peoples, or
(b) the doing of the past act would affect rights or interests (other than native title rights and interests) of Aboriginal peoples (whether arising under legislation, at common law or in equity and whether or not rights of usage).
(2) Division 2 (Effect of validation of past acts on native title) does not affect a reservation or condition or rights or interests mentioned in this section.
s 15: Am 1998 No 88, Sch 1 [14] [15].
15A Preservation of beneficial reservations and conditions—intermediate period acts
15A Preservation of beneficial reservations and conditions—intermediate period acts
15A Preservation of beneficial reservations and conditions—intermediate period acts
(NTA, secs 22F and 22C)
(1) This section applies if—
(a) an intermediate period act attributable to the State contains a reservation or condition for the benefit of Aboriginal peoples, or
(b) the doing of an intermediate period act attributable to the State would affect rights or interests (other than native title rights and interests) of Aboriginal peoples (whether arising under legislation, at common law or in equity and whether or not rights of usage).
(2) Division 2A (Effect of validation of intermediate period acts on native title) does not affect a reservation or condition or rights or interests mentioned in this section.
s 15A: Ins 1998 No 88, Sch 1 [16].
Part 3 Confirmation of certain rights
Part 3 Confirmation of certain rights
Part 3 Confirmation of certain rights
16 Object of this Part
16 Object of this Part
16 Object of this Part
The object of this Part is to confirm, in accordance with section 212 (Confirmation of ownership of natural reso
This is an opening excerpt, not the complete document.