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De Soyza, Anne --- "Proposed Native Title Legislation in Western Australia" [1999] IndigLawB 3; (1999) 4(17) Indigenous Law Bulletin 9


Proposed Native Title Legislation in Western Australia

By Anne De Soyza

The WA Government proposes to enact three pieces of legislation in response to the amendments to the Commonwealth Native Title Act (the NTA). Below is a brief summary of the three Bills. Included are some comments on the proposed alternative procedures contained in the Native Title (State Provisions) Bill, which are intended to take effect under ss 43 and 43A of the Native Title Act (the NTA).

1. The Titles Validation Amendment Bill 1998

The Titles Validation Bill proposes amendment to the Titles Validation Act 1995 (WA) to:

The Titles Validation Bill is intended to validate approximately 9000 titles granted over pastoral lease prior to March 1995 by pursuant to the State’s Land (Titles and Traditional Usage) Act.[1] The Bill, if passed, will also validate 211 mining titles granted since March 1995 outside of the future act process of the NTA.

The Titles Validation Bill is currently in the State’s Upper House, the Legislative Council. The balance of power in the Upper House is held by Greens and Democrats and the ALP.[2] The minor parties and the ALP oppose the Bill in its current form, and propose to refer the Bill to a committee for further consideration. One proposal that has been considered by the minor parties is that the schedule of extinguishing tenures be omitted from the Bill.

The WA Chamber of Minerals and Energy has been engaged in a lobbying and advertising campaign aimed at pressuring the ALP to pass the Bill. In response, the ALP has taken the view that it wants the Bill passed by Christmas, while the minor parties want the committee to be able review the Bill over the Christmas break. Recently however, the ALP has indicated that it may review its position on the need to pass the Bill before the Christmas break.

On the 24 November 1998, Justice Lee in the Federal Court handed down his in relation to the native title application by the Miriuwung and Gajerrong people in the Kimberley. The Miriuwung Gajerrong application covers several different types of crown lease (including pastoral lease) and other interests, as it includes the Ord River irrigation development. Justice Lee’s decision is that native title survives the grant of some acts which the State has assumed will extinguish native title. The decision means the State can no longer claim that it is merely confirming the extinguishing effect of exclusive and non-exclusive tenures on native title. The net result of the decision may be that there is increased support for a review of the Bill. However, the State Government has indicated that it plans to appeal the decision.

2. The Native Title (State Provisions) Bill 1998

The WA State Government intends to establish a Native Title Commission which will handle the mediation and determination of claims, in addition to the future act process.

The Native Title (State Provisions) Bill seeks to:

The Native Title (State Provisions) Bill is in the Legislative Council, along with the Acts Administration (Land Administration, Mining and Petroleum) Bill described below. The Greens, Democrats and the ALP in the Upper House propose to have this Bill referred to a committee, which will sit over the Christmas break and report to Parliament in the next session, in March 1999. The ALP is considering proposing some substantive amendments to the consultation provisions in the Bill, and to provide the possibility of Parliamentary disallowance of any ministerial determinations under the alternative provisions. The latter proposal is important as there is no administrative appeals process in Western Australia.

3. The Acts Amendment (Land Administration, Mining and Petroleum) Bill 1998

The Acts Amendment (Land Administration, Mining and Petroleum) Bill seeks to amend the Land Administration Act 1997, Mining Act 1978 and Petroleum (Submerged Lands) Act 1982 to ensure consistency with the Native Title Act and the Native Title (State Provisions) Bill.

The Native Title (State Provisions) Bill - Some Comments on the Alternative Procedures

As noted above, the Native Title (State Provisions) Bill (hereafter referred to as the Bill) contains alternative procedures intended to take effect under ss. 43 and 43A of the NTA, in lieu of the RTN provisions in the NTA.

Part 3 of the Bill sets out consultative procedures for future acts in relation to alternative provision areas, pursuant to s. 43A of the NTA. The following is a summary of some of the salient aspects of the procedures proposed by Part 3.

Proposed Right to Negotiate Procedures

Part 4 of the Bill sets out the RTN procedures under s. 43 of the NTA. Points to note about the proposed alternative RTN procedures are:

In response to concerns raised by the Prime Minister’s Wik Task Force, that the alternative provisions in the WA Bill may not fit within the framework agreed to by the Senate, the State Government released amendments to the Bill on the 18 November 1998. The amendments introduce a statutory right to judicial review, and measures to ensure the independence of the Commissioner. The consultation and negotiation provisions however, remain unchanged.

Even if the WA State Parliament were to pass the Native Title (State Provisions) Bill, the alternative provisions will not become effective unless, the relevant Commonwealth Minister is satisfied that the minimum requirements for the consultation and negotiation procedures, specified in ss 43 and 43A of the NTA are in fact met, and makes a determination in writing to this effect. Thus, clearing the Upper House is only the first hurdle for the WA State Government, in seeking to control the administration of the future act process.

Anne De Soyza is a solicitor in the Aboriginal Legal Service of Western Australia (Inc)


[1] The Land (Titles and Traditional Usage) Act (WA) 1993 was struck down by the High Court in Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373, after which the WA Government commenced applying the future act provisions in the NTA.

[2] All comments on the Parliamentary progress of the Bills is current to the 30 November 1998.

[3] Any reference to claimants herein means registered native title claimants.

[4] Any reference to native title rights and interests means registered native title rights and interests unless otherwise stated.


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