Titles (Validation) and Native Title (Effect of Past Acts) Act 1995

The Act directly affects four broad groups.

First, native title holders and claimants. They are the persons whose rights and interests are subjected to validation, extinguishment, suspension or suppression. Sections 12, 12G and 12P expressly entitle them to compensation for the effects of validation or confirmation of extinguishment. Notification obligations in ss 12H and 12O require that registered native title bodies corporate, registered native title claimants and representative Aboriginal/Torres Strait Islander bodies receive details of intermediate period acts and certain PNEPPAs.

Second, the State of Western Australia and its agencies. The Act binds the Crown in all capacities (s 3). It validates acts “attributable to the State” (ss 5, 12A) and makes the State the compensation payer (ss 12(2), 12G(2), 12P(2)). Government departments that issued freehold grants, pastoral leases, mining tenements, public works or reserves under the Land Act 1933 between 1975 and 1996 are the primary subjects of validation. The State must also give the notifications required by ss 12H and 12O.

Third, third-party title holders and resource users. Pastoralists, freehold owners, miners, public utilities and local governments whose titles or works would have been invalid because of native title now hold validated titles. The certainty provided by ss 5, 12A, 12I and 12J removes cloud on title for commercial, residential, agricultural and mining leases. Public works constructed before or during the intermediate period receive statutory extinguishment or confirmation of extinguishment. The confirmation of public access in s 14 benefits recreational users, fishers and stock-route users.

Fourth, Aboriginal persons exercising traditional rights. Section 10 is a specific protection: validation of a pastoral lease does not authorise the ejection or removal of Aboriginal persons who reside on or exercise access over the land. Sections 11, 12F, 12K and 12N preserve beneficial reservations or other Aboriginal rights and interests, ensuring that statutory or common-law rights to hunt, gather or conduct ceremonies are not inadvertently extinguished.

Because the Act operates by reference to NTA definitions, its practical reach extends to any land or waters in Western Australia where native title might have existed at the time the past act, intermediate period act or PEPA was done.

Native title holders' rights are primarily compensatory and procedural. They hold an entitlement to compensation on NTA Division 5 principles for any extinguishment or impairment caused by validation (ss 12, 12G, 12P). They have the right to receive notification under ss 12H and 12O and to comment on certain PNEPPAs (s 12O(b)). The preservation clauses (ss 11, 12F, 12K, 12N) confer a right that beneficial reservations and non-native title Aboriginal interests survive validation.

The State's duties include:

• Paying compensation (ss 12(2), 12G(2), 12P(2)).
• Giving public and targeted notifications within six months of the 1999 amending Act for intermediate period mining rights and Land Act 1933 tenures (ss 12A note, 12H).
• Ensuring that validation does not disturb beneficial Aboriginal reservations (ss 11, 12F, 12K, 12N).
• Observing the precise extinguishment rules rather than claiming broader extinguishment.

Title holders' rights are the mirror image of validation: once validated, freehold, leasehold and public works are “taken always to have been valid” (ss 5, 12A, 12R). For PNEPPAs, s 12M(1)(a) gives the grantee the right to exercise consistent rights without interference from native title, while inconsistent rights prevail for the duration of the lease.

Public rights are confirmed in s 14: existing access to waterways, beaches, stock routes and former public places cannot be impeded by native title claims.

The Act contains no standalone regulatory machinery; its duties are essentially to observe the statutory consequences it prescribes and to pay compensation when due.

The Act creates no criminal offences or civil penalty regimes. Enforcement occurs indirectly through the NTA's compensation and judicial review mechanisms. Native title holders may apply to the Federal Court under NTA s 61 for a determination of compensation payable by the State under ss 12, 12G or 12P. Because the Act deems acts “always to have been valid”, the principal remedy for non-compliance with procedural requirements (e.g. failure to notify under s 12H) would be declaratory relief or, in extreme cases, judicial review of the State's failure to comply with a statutory duty.

The compensation liability is strict once the preconditions in the NTA and the Act are met. Determination follows NTA ss 51–54, requiring “just terms” and taking into account any existing benefits or offsets. There is no limitation period specified in the Act itself; the NTA's six-year limitation for compensation claims (NTA s 50(2)) would apply by incorporation.

The Act is expressly parasitic on the NTA. Section 4(2) provides that words and expressions have the same meaning as in the NTA unless contrary intention appears. Every operative section cross-references specific NTA provisions (e.g. s 5 to NTA s 19; s 12A to NTA s 22F; s 12I to NTA s 23E). The non-extinguishment principle, category definitions, compensation principles and ILUA validation rules are all imported wholesale.

At State level, the Act interacts with the Land Administration Act 1997 (successor to the Land Act 1933 referenced in s 12H), the Mining Act 1978, the Petroleum and Geothermal Energy Resources Act 1967 and various public works statutes. Validation under the Act removes any native title impediment to titles issued under those Acts. The Aboriginal Heritage Act 1972 is not directly amended, but the preservation clauses ensure that statutory Aboriginal heritage rights survive.

The Act must be read with the Native Title (State Provisions) Act 1999 (WA) which establishes the State's alternative heritage protection and negotiation regimes. Where an ILUA validates a future act under Part 2C, that validation interacts with the future act provisions in NTA ss 24AA–24EB.

Common-law extinguishment principles remain relevant for PNEPPAs under s 12M(1)(b)(i): if the grant would have extinguished native title at common law, it does so under the Act; otherwise the rights are merely suspended.

The most significant changes occurred in 1999. The Titles Validation Amendment Act 1999 (No 9 of 1999) inserted Parts 2A, 2B and 2C and amended the long title. This was a direct response to the Commonwealth's Native Title Amendment Act 1998 (Cth), which introduced the intermediate period act validation regime (NTA ss 22A–22H), the PEPA and PNEPA confirmation provisions (NTA ss 23A–23J) and the ILUA validation pathway.

A further amendment in the Titles (Validation) and Native Title (Effect of Past Acts) Amendment Act 1999 (No 55 of 1999) refined the definition of “relevant act” in s 12I(1) and made minor adjustments to ss 12I and 12J to ensure alignment with NTA s 23B.

These changes were driven by the need for certainty after Wik. Pastoral leases were found not to extinguish native title; the Commonwealth Parliament responded with a comprehensive validation and confirmation scheme. Western Australia adopted that scheme to protect its extensive pastoral, mining and public works estate and to channel all native title compensation claims into a single statutory pathway. The 1999 amendments therefore broadened the Act from a narrow “past acts” validation statute to a near-complete mirror of the NTA's validation and confirmation chapters as they apply to State acts.

No substantive amendments have been made since the 1999 reprints. The Act remains in its 2015 reprint form.

Although the Act itself has not generated a large body of reported litigation, its provisions have been considered in several key cases that tested the validity of the NTA validation regime. In Western Australia v Ward (2002) 213 CLR 1 the High Court examined the interaction between State validation legislation and the NTA's non-extinguishment principle. The Court confirmed that where a State Act validly extinguishes native title under the NTA scheme, that extinguishment is effective.

The confirmation provisions in Part 2B were designed to give statutory force to the common-law position post-Wik and Fejo v Northern Territory (1998) 195 CLR 96. Controversies have arisen over the breadth of “previous exclusive possession acts”. Pastoral leases that reserved Aboriginal access rights have generated disputes about whether they confer “exclusive possession” for the purposes of s 12I. Courts have generally followed the NTA definitions strictly.

Compensation claims under ss 12, 12G and 12P have been slow to resolve. Many claims remain in the Federal Court, often stayed pending determination of the underlying native title claim. The quantum of compensation for historical extinguishment remains contentious; Griffiths v Northern Territory (No 3) [2016] FCA 900 and the subsequent High Court appeal in Northern Territory v Griffiths (2019) 269 CLR 1 have provided guidance on valuation methodology that applies equally to Western Australian claims under this Act.

A continuing controversy is the extent to which s 10 prevents pastoralists from excluding Aboriginal people exercising native title rights. Pastoralists argue that once native title is extinguished the right to exclusive possession revives; native title parties counter that s 10 operates as a statutory overlay preserving access even after validation. The provision has not been the subject of definitive appellate interpretation.

Most practitioners assume that once a pastoral lease is validated under s 5 or confirmed under s 12I the native title is gone forever. Section 10 is the trap: it expressly provides that extinguishment “does not by itself confer any right to eject or remove Aboriginal persons” who reside on or exercise access over the land. The pastoralist's title is validated but the traditional owners' physical presence is statutorily protected. This creates a practical co-existence that is rarely explained in title insurance opinions.

Another gotcha is the interaction between s 12M and earlier validation provisions. If a non-exclusive pastoral lease was a category B past act under s 8, s 12M(2) excludes it from the partial extinguishment regime. The earlier provision prevails, producing different extinguishment outcomes depending on the precise timing and character of the grant. Lawyers must meticulously trace the chronology before advising on whether native title survives.

The notification obligations in s 12H are time-limited (six months after the 1999 amending Act) but the consequences of non-compliance are not spelled out. Failure to notify does not appear to invalidate the underlying validation, yet it may expose the State to procedural fairness complaints or affect the quantum of compensation. No reported case has tested this.

Compensation under s 12P is available “only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act”. This requires a counterfactual analysis: what would have happened at common law? Many claims fail because lawyers cannot prove that native title would have survived the grant absent the statutory validation. The onus and the evidentiary burden are substantial.

Finally, Part 3's confirmation of public access to “areas that were public places at the end of 31 December 1993” (s 14(e)) is broader than many realise. It captures any Crown land treated as a public place on that date, even if never formally dedicated. This has quietly extinguished native title claims over numerous stock routes, reserves and informal camping areas without compensation, because the confirmation is expressed not to extinguish native title (note to Part 3) yet operates to confirm public rights that are inconsistent with exclusive native title.

Compliance for government agencies requires a three-step due diligence process before issuing new titles or undertaking works that may affect native title. First, determine whether the act is a future act under the NTA and, if so, whether it can be validated by an ILUA under Part 2C or must follow the NTA's right-to-negotiate or expedited procedure. Second, for historical titles, maintain a register of all grants between 1975 and 1996 cross-referenced against native title claims so that validation status can be certified. Third, ensure that any compensation liability is accrued and that beneficial reservations are expressly carried forward in new instruments.

For private title holders and resource companies the practical steps are:

1. Obtain a title opinion that identifies the specific validating provision (e.g. s 6 for a pre-1994 freehold grant, s 12I for a PEPA pastoral lease).
2. Confirm that any Aboriginal access rights preserved by s 10 or the beneficial reservation clauses (ss 11, 12F) are respected on the ground.
3. Where compensation claims are active, participate in the NTA s 50 mediation or Federal Court proceedings rather than ignoring them; the State's liability is not shifted to the title holder unless an ILUA provides otherwise.
4. For mining and petroleum tenements granted in the intermediate period, verify that the s 12H notification was given; although it does not affect validity, it may affect the assessment of compensation.

Legal practitioners should maintain precedent checklists that map each category of act against the applicable section of the Act and the corresponding NTA provision. Because the definitions are ambulatory (s 4(2)), any future amendment to the NTA automatically updates the meaning of terms used in this Act. Therefore, compliance requires periodic review of both the Commonwealth and State statutes.

In transactions, vendors should warrant that all necessary validations have occurred and that no outstanding compensation claims attach to the land. Purchasers should insist on seeing the native title search that confirms the applicable category and the absence of preserved Aboriginal rights that could interfere with intended use. For public works and infrastructure projects, engineers and planners must identify the precise date construction commenced so that the extinguishment date under ss 7(2), 12C(2) or 12J(1)(b) can be fixed accurately.

Finally, all parties should remember that the Act does not oust the Aboriginal Heritage Act 1972. Even where native title has been extinguished, Aboriginal sites and objects remain protected. A compliant due diligence process therefore integrates native title validation, heritage surveys and, where appropriate, ILUA negotiations that address both regimes simultaneously.