New South Wales

The Native Title (NSW) 1994 Act validates past acts attributable to New South Wales but does not cover future acts. Companies need to look at Native Title and Aboriginal heritage laws when considering mineral or petroleum exploration and development in NSW, writes partner Tony Wassaf.

Last updated December 2005

State native title legislation

• Native Title (NSW) Act 1994

Land rights legislation

• Aboriginal Land Rights Act 1983

Mining and petroleum legislation

• Mining Act 1992,

• Offshore Minerals Act 1999; and

• Petroleum (Onshore) Act 1991

Heritage legislation

• Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

• National Parks and Wildlife Act 1974

State native title legislation

Native Title (NSW) Act 1994

This Act:

1. validates past and intermediate period acts in accordance with the terms and requirements of the Commonwealth Native Title Act 1993 (the NTA);
2. confirms the past extinguishment of native title by certain valid or validated acts, including previous exclusive possession acts, in accordance with the NTA ; and
3. confirms NSW's existing ownership of any natural resources; NSW's existing rights to use, control and regulate the flow of water; existing fishing access rights; and existing public access to waterways and public places.

The NSW Government is liable for any compensation payable as a result of validation of past or intermediate period acts, and the past extinguishment of native title.

Certain future acts that are covered by indigenous land use agreements in the manner permitted by the NTA are validated.

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Land rights legislation

Aboriginal Land Rights Act 1983 (NSW)

This Act aims to give rights over Crown land to representatives of Aboriginal people to help redress the injustice caused to the Aboriginal community by the deprivation of their land following the settlement of Australia. The Act establishes Aboriginal Land Councils (ALCs) at State, regional and local levels.

Definitions

NSW or local Aboriginal land councils may claim "claimable Crown lands" for vesting in the relevant council. "Claimable Crown lands" are defined as:

• land vested in the Crown which can be sold, leased or reserved or dedicated for any purpose under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901;
• land which is not lawfully used or occupied;
• land which, in the opinion of a Crown lands minister, is not needed or likely to be needed as residential land or for an essential public purpose; and
• land which is not covered by a registered native title determination application by a claimant or by an approved native title determination that native title exists.

Granting claims to land

If the Crown lands Minister is satisfied that land subject to a claim is claimable Crown land, he or she will transfer the land to the relevant ALC. If the Minister is satisfied that land subject to a claim is not claimable Crown land, he or she will refuse the claim over the land. However, if the Minister is not satisfied that land claimed is claimable Crown land because it is needed for an essential public purpose, he or she may grant the claim subject to a condition relating to the use of the land.

An ALC may appeal against a Minister's decision to refuse a claim. A certificate issued by the Minister stating that land is needed (or likely to be needed) as residential land or for an essential public purpose, shall be accepted as final, shall not be called in to question in any proceedings and is not liable to appeal or review on any grounds.

Effect of the legislation

Most land is transferred to or vested in an ALC (ALC land) for an estate in fee simple. In the case of land subject to the Western Lands Act 1901 not within the urban area of a city, town or village, a lease in perpetuity is granted under that Act but subject to existing native title rights and interests. Both the fee simple and lease include minerals or other natural resources in the land apart from gold, silver, petroleum and coal. An ALC has all the powers of a natural person in relation to the land and is entitled to explore for and exploit, or cause to be explored for and exploited, any mineral or natural resources vested in it.

Subject to the other conditions that follow, mining operations (defined to mean prospecting, exploring or mining for mineral or other natural resources) cannot be conducted on ALC land without the consent of the relevant ALC.

Any consent given may be subject to terms and conditions, including payment of fees or royalties, as the ALC wishes to impose.

A local ALC may only give consent if the consent and any terms and conditions are approved by the NSW ALC or the NSW Land and Environment Court. A proposal may be referred to the Land and Environment Court if the NSW ALC has refused to approve the consent given by the local ALC.

The NSW ALC or Land and Environment Court may only refuse consent on the ground that giving consent is inequitable to the ALC or detrimental to the interests of members of other local ALCs.

Other conditions

ALC consent is not required for any mining operations that may be carried out on ALC land for:

• gold, silver, coal or petroleum; or
• any other mineral under any right conferred by the Mining Act 1992, the Offshore Minerals Act 1999, (see our commentary on mining and petroleum legislation) or any other law, where that right was in force at the time the lands were vested in that ALC; or
• a mineral claim or authority under an exclusive right conferred by the Mining Act 1992 or a renewal of any right, mineral claim or authority.

The Act does not prevent:

• the renewal or extension of any right, mineral claim or authority in force at the time the lands were vested in the ALC;
• the registration of a mineral claim;
• the granting of an authority under an exclusive right conferred by the Mining Act 1992; or
• the granting of a licence under an exclusive right conferred by the Offshore Minerals Act 1999.

Any Act (such as the Mining Act) which provides for a person to explore for or exploit mineral or other natural resources that are vested in another person, does not apply to mineral or natural resources vested in a NSW or local ALC.

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Mining and petroleum legislation

The Mining Act 1992, the Offshore Minerals Act 1999 and the Petroleum (Onshore) Act 1991 contain some provisions aimed at protecting areas of Aboriginal significance.

Those Acts state:

• In deciding whether to grant a mining or petroleum title, the minister is required to take into account the need to conserve and protect features of Aboriginal, archaeological and historical interest in the land over which the title is sought.
• Conditions attached to the grant or renewal of a mining or petroleum title must include conditions relating to the conservation and protection of features of Aboriginal, archaeological and historical interest in the land that is subject to the title.

Exploration licence conditions

The Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs made a Determination and Approval on 24 September 1996 under the NTA covering exploration licences under the NSW Mining Act and special prospecting authorities under the NSW Petroleum (Onshore) Act. Under the Determination, if such licences and authorities include a condition that the holder must not prospect on or in any native title land without the NSW Minister for Mineral Resources' prior written consent, then the right to negotiate procedure will not apply to the grant or renewal of any such licence or authority; but it will apply to the granting of the NSW Minister's consent.

This allows exploration licences and the special prospecting authority over land (including Crown land) that is potentially affected by native title to be granted without the need to follow the right to negotiate procedure. But before it is possible for a holder to undertake prospecting on that land, it will be necessary for the right to negotiate procedure to be followed.

The onus will therefore be on holders to undertake title searches of exploration licence areas to determine what areas can or cannot be explored without the Minister's consent.

See below for details of the approved low impact exploration regimes under the NSW Mining Act 1992 and Petroleum (Onshore) Act 1991.

Approved low impact exploration regime under the Mining Act 1992

The regime for a low impact exploration licence under the NSW Mining Act 1992 has been approved under s26A of the Commonwealth Native Title Act 1993 (NTA). The licence confers on its holder a right to explore or prospect, which is unlikely to have a significant impact on the land. Where such a licence is granted, the right to negotiate procedure in the NTA need not be followed.

The holder of a low impact exploration licence may carry out prescribed prospecting operations which are:

• aerial surveys, geological and surveying field work that does not involve clearing; 
• sampling by hand methods; 
• ground-based geophysical surveys that do not involve clearing, drilling and activity associated with drilling; 
• the establishment of a drill site that does not involve clearing or site excavation other than the minimum necessary to establish a drill site; and 
• environmental field work that does not involve clearing.

Access arrangement required

Section 32F(2) of the Act provides that the holder of a low impact exploration licence is not authorised to carry out prospecting operations on any relevant land otherwise than in accordance with an access arrangement under Division 2 of Part 8 of the Act. The access arrangement between the holder of the licence and each registered native title body corporate or each registered native title claimant must:

1. be agreed between them in accordance with that Division or that is determined for them by an arbitrator in accordance with that Division; and
2. have involved consultation by the holder of the licence that satisfies the requirements of section 26A of the NTA.

The requirement for an access arrangement also applies on a renewal of a low impact exploration licence (s32G).

Initial procedures

The procedure in Division 2 of Part 8 of the Act involves the holder of a prospecting title (in this instance, a low impact exploration licence) giving written notice to each landholder of its intention to obtain an access arrangement in respect of the land. The notice must, in addition to stating the holder's intention, contain a plan and description of the area and a description of the prospecting methods intended to be used in the area. An access arrangement may be agreed before or after the prospecting title is granted and may be either oral or in writing. If 28 days after the notice the parties have not been able to agree on an access arrangement, then the holder may, by further notice to each landholder, request them to agree to the appointment of an arbitrator. If the parties cannot agree on an arbitrator within another 28 days, then either party may apply to the Director-General of the Department of Mineral Resources for the appointment of a member of the arbitration panel as an arbitrator. 

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Access arrangement provisions

Division 2 of Part 8 does not prescribe what must be included in an access arrangement except that:

(a) If there is any inconsistency between:

        (i) a provision of an access arrangement; and

        (ii) a provision of the Act, of the regulations under the Act or of a condition of a prospecting title,

then the provision referred to in (ii) prevails (s141(3)).

(b) If the holder of a prospecting title contravenes an access arrangement, the landholder may deny the holder access to the land until the holder ceases the contravention or the contravention is remedied to the reasonable satisfaction of the landholder (s141(4)). However, this does not affect any proceedings that may be brought against the holder for the contravention (s141(5)).

(c) An access arrangement does not run with the land and - unless terminated sooner - terminates if a landholder ceases to be the landholder of the land or on the death of the landholder (s158).

For the purposes of the low impact exploration licence regime, reference to the landholder means each registered native title claim or registered native title body corporate in respect of the relevant land.

However, s141 of the Act provides that the access arrangement may make provision for, or with respect to, the following matters:

(a) the periods during which the holder of the prospecting title is to be permitted access to the land;

(b) the parts of the land in or on which the holder of the title may prospect and the means by which the holder may gain access to those parts of the land;

(c) the kinds of prospecting operations that may be carried out in or on the land;

(d) the conditions to be observed by the holder of the title when prospecting in or on the land;

(e) the things which the holder of the title needs to do to protect the environment while having access to the land and carrying out prospecting operations in or on the land;

(f) the compensation to be paid to any landholder as a consequence of the holder of the title carrying out prospecting operations in or on the land;

(g) the manner of resolving any dispute arising in connection with the arrangement;

(h) the manner of varying the arrangement; and

(i) such other matters as may be agreed.

By virtue of s263 of the Act, on the granting of an exploration licence (which includes a low impact exploration licence) a landholder of any land (whether or not subject to the licence) becomes entitled to compensation. The compensation is for any compensable loss suffered - or likely to be suffered - by the landholder as a result of the exercise of the rights conferred by the licence or by an access arrangement in respect of the licence. A landholder for this purpose includes a native title holder but not a registered native title claimant.

Compensable loss is defined in s262 and includes loss caused, or likely to be caused, by deprivation of the possession or of the use of the surface of the land.

The holder of an exploration licence may agree with a landholder as to the amount of compensation payable, but an agreement is not valid unless in writing signed by the parties (s263(2)). Provisions in an access arrangement that relate to compensation (whether or not in writing) have effect as an agreement under s263 (s263(3)).

Consultation

The Act (s32F(2)) requires consultation that satisfies the requirements of s26A of the NTA. This  involves a legal obligation on the holder to consult appropriately the registered native title body corporate or registered native title claimant. The aim is to minimise the impact of the grant of the licence on the exercise of native title rights and, in particular, protect and avoid of sites of particular significance, and regulate access to the land.  

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Approved low impact exploration regime under Petroleum (Onshore) Act

A similar Division for low impact exploration to that described in the Mining Act section applies under the Petroleum (Onshore) Act 1991 in respect of petroleum prospecting titles.

If compensation is payable under s24MD of the Commonwealth Native Title Act 1993 (see our commentary) in respect of the grant, renewal or variation of a title under the Mining Act or Petroleum (Onshore) Act then the holder of that title is liable to pay that compensation.

The Lightning Ridge area in NSW has been determined to be an approved opal or gem mining area for the purposes of s26C of the NTA.

The right to negotiate procedure in the NTA therefore need not be followed for the granting or varying of opal prospecting licences and mining leases for opal or gems in that area under the Mining Act.

Other future acts to be undertaken in NSW are regulated by the procedures set out in the NTA. 

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Heritage legislation

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

This Act gives the Commonwealth Minister for Aboriginal Affairs wide powers to protect significant Aboriginal areas or objects which may be under threat of injury or desecration. The protection is achieved by a ministerial declaration, which can follow an application from an Aboriginal person or group.

The declaration must sufficiently describe the area or object to enable it to be identified. It must contain measures to protect and preserve the area or object from injury or desecration. It is an offence to contravene a provision of a declaration.

The legislation is not intended to exclude or limit the operation of the law of a State that is capable of operating concurrently with the Act. Under the Act, the Minister cannot make a declaration without consulting the appropriate State Minister as to whether, under State law, the area or object is effectively protected from threat, injury or desecration. As soon as practicable after making the declaration, the Minister must take reasonable steps to notify people who are likely to be substantially affected by the declaration.

National Parks And Wildlife Act 1974 (NSW)

This Act contains provisions for the protection and preservation of Aboriginal objects and places of cultural and historic significance. Lands containing Aboriginal objects or sites may be designated as either Aboriginal areas or historic sites.

Reservation powers

Any unoccupied Crown lands on which Aboriginal objects or Aboriginal places are situated are deemed to be reserved as Aboriginal areas to preserve, protect and prevent damage to Aboriginal objects or Aboriginal places.

Crown lands, lands of the Crown and land acquired under the Act may be reserved as historic sites. This reservation will not affect the terms and conditions of any existing mining interest affecting those lands.

Any Crown land (with the consent of the Minister administering the Crown Lands Consolidation Act 1913 and the holder and occupier) and other lands (with the consent of the owner and occupier) on which Aboriginal objects or Aboriginal places are situated may be declared protected archaeological areas. No reservation may be made about unoccupied Crown lands.

Any place of 'special significance with respect to Aboriginal culture' may be reserved as an Aboriginal place.
Reservations are effected by the publication in the NSW Government Gazette of notices by:

• the Governor of NSW with the concurrence of the Minister administering the Fisheries Management Act 1994 or in whom the lands are vested (in the case of Aboriginal areas and historical sites); or
• the Minister alone (in the case of Aboriginal places and protected archaeological areas).

Aboriginal areas and historic sites

It is unlawful to prospect or mine for minerals in an Aboriginal area or historic site unless authorised by an Act of Parliament or authority, authorisation, permit, lease, licence or occupancy existing at the time that land is reserved to be a historic site or an Aboriginal area or any renewal of these interests. Subject to these exceptions, the National Parks and Wildlife Act 1974 excludes the application of the Mining Act 1992, the Offshore Minerals Act 1999, the Petroleum (Onshore) Act 1991 and the Petroleum (Submerged Lands) Act 1982 to lands in an Aboriginal area or historic site. The Minister may approve prospecting for minerals subject to certain terms and conditions. Before granting consent to any prospecting for minerals, the Minister must state an intention to approve this prospecting before both Houses of Parliament. Any prospecting must be carried out on the government's behalf and by a person nominated by the Minister responsible for the Mining Act.

The Director-General of National Parks and Wildlife (the Director-General) is vested with the care, control and management of Aboriginal areas and historic sites.

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Plans of management

The Director-General must have a plan of management prepared for each historic site as soon as practicable after the reservation. The Director-General may have a plan of management prepared for any Aboriginal area.

The plan of management must contain a written scheme of the operations proposed for the Aboriginal area or historic site in order to carry out the purpose and objects of the Act.

In preparing a plan of management, regard must be had to preserving each historic site and preserving any historic structure or Aboriginal object or Aboriginal place on each historic site or Aboriginal area.

When a plan of management has been prepared for a historic site or Aboriginal area, any interested person may make representations within 90 day's notice of the preparation of the plan. The plan and representations are considered by the appropriate regional advisory authority and the National Parks and Wildlife Advisory Council. The plan is then submitted to the Minister together with the Council's comments and suggestions. The Minister must consider these comments and suggestions before adopting the plan. The Minister may:

• adopt the plan;
• refer it back to the responsible authority and Council for further consideration;
• amend the plan; or
• cancel the plan completely and substitute a new plan.

If the plan is to be amended, altered or cancelled, the Minister must instruct the responsible authority to prepare the amended or new plan.

When the Minister has adopted a plan of management, the Director-General must carry it out. No operations may be carried out in relation to the lands affected by the plan unless the operations comply with the plan. This restriction applies despite the provisions in this or any other Act.

Aboriginal places, archaeological areas and Aboriginal objects

While there are no specific prohibitions on mining in protected archaeological areas or Aboriginal places, the Director-General of National Parks and Wildlife is empowered to regulate entry onto and use of land in archaeological areas. He or she is responsible for the care, preservation and protection of an Aboriginal place or object on any Aboriginal area, historic site or archaeological area. There are also a number of offences under the Act concerning the damage, destruction and removal of Aboriginal objects.

Breaches of the legislation

Breaches of the Act are punishable by a maximum fine of $11,000, or $22,000 in the case of a corporation. Damage, destruction or defacement of an Aboriginal object or Aboriginal place without the consent of the director is punishable by a maximum fine of $5,500 or six months' imprisonment, or $22,000 in the case of a corporation. Directors and corporations may both be proceeded against if one or the other commits an offence under the Act. If:

• a director, a person concerned in the management, an employee or an agent of a corporation
• either commits, directs, consents to or agrees with another person to commit a breach of the Act,

then the corporation is deemed to have breached the same provision.

Alternatively, if a corporation breaches any provision of the Act, each director or person involved in the management of the corporation is deemed to have contravened the same provision if they knowingly authorised or permitted the contravention. If any damage or loss is caused to a protected area, or the Minister or Director-General incurs charges or expenses as a result of the breach, these sums may also be recovered in compensation from the offender.

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