What it does
The Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (the Act) is Western Australia's legislative response to the recognition of native title in Mabo v Queensland (No 2) (1992) 175 CLR 1 and the enactment of the Commonwealth Native Title Act 1993 (NTA). Its core function is to validate past acts, intermediate period acts and certain future acts attributable to the State that would otherwise be invalid because of native title, and to confirm the effect of those acts on native title rights and interests.
Part 2 (ss 5–12) validates every past act attributable to the State (s 5) and prescribes the precise effects of that validation according to the NTA's four categories. A category A past act that is not a public work extinguishes native title completely (s 6). Where the category A past act consists of the construction or establishment of a public work to which NTA s 229(4) applies, native title is extinguished only in relation to the land or waters on which the work is situated, with the extinguishment deemed to occur on 1 January 1994 if construction straddled that date (s 7). Category B past acts extinguish native title only to the extent of any inconsistency (s 8). Category C (mining leases) and Category D (catch-all) past acts attract the non-extinguishment principle in NTA s 238, so native title continues but is suppressed to the extent of any inconsistency while the validated act remains in force (s 9).
Important carve-outs and savings appear throughout. Extinguishment does not confer any right to eject Aboriginal persons residing on or accessing land covered by a validated pastoral lease (s 10). Beneficial reservations or conditions for Aboriginal people, and any other Aboriginal rights or interests arising under legislation, common law or equity, are expressly preserved (s 11). Compensation is payable by the State on NTA principles (s 12).