Western Australia

The Titles (Validation) and Native Title (Effects of Past Acts) Act 1995 (WA) validates past acts attributable to Western Australia. Generally, future acts are covered by the Commonwealth NTA, write Senior Associate Stuart Mengler and law graduate Brendan Fyfe. A number of other laws cover Western Australian land in which Aboriginal people have an interest. Companies need to take all of these Acts into account when considering mineral or petroleum exploration and development work. 

Last updated November 2005

State native title legislation

• Titles (Validation) and Native Title (Effects of Past Acts) Act 1995 (WA)
• Native Title (State Provisions) Act 1999 (WA)

Land rights legislation

• Aboriginal Affairs Planning Authority Act 1972 (WA)
• Aboriginal Communities Act 1979 (WA)

Mining and petroleum legislation

• Mining Act 1978 (WA)
• Petroleum Act 1967 (WA)

Heritage legislation

• Aboriginal Heritage Act 1972 (WA)
• Aboriginal and Torres Strait Islander Heritage (Protection) Act 1984 (Cth)

Western Australian policy

• Granting mining tenements where native title has been extinguished
• Petroleum titles and native title - overview

State native title legislation

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

This Act:

1. validates some past and intermediate period acts in accordance with the terms and requirements of the Commonwealth Native Title Act (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 Western Australia's existing ownership of any natural resources; Western Australia'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 WA Government is liable for any compensation payable as a result of the validation of past or intermediate period acts, and the past extinguishment of native title.

However, the Act does not contain any provisions dealing with future grants (except in relation to reaching an agreement to validate invalid future acts). As a result, the future act provisions (including the right to negotiate procedure) in the Commonwealth NTA govern future acts and grants of interests in land in Western Australia.

Native Title (State Provisions) Act 1999 (WA)

This Act sets out procedures to govern certain types of future acts that occur in the State.

This Act was assented to by the Western Australian Parliament on 10 January 2000. However, the substantive provisions are not in force because, while the Commonwealth Attorney-General determined that the exception to the right to negotiate provisions complied with the NTA, the Senate disallowed that determination on 9 November 2000. The current government does not intend to pursue a State-based regime. It is therefore unlikely that the remaining provisions of this Act will ever come into effect. 

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Land rights legislation

Aboriginal Affairs Planning Authority Act 1972 (WA)

This Act establishes the Aboriginal Lands Trust, which is empowered to acquire and hold land. It must use and manage that land for the benefit of people of Aboriginal descent and, as far as practicable, in accordance with the wishes of the Aboriginal inhabitants of the area. The Trust is authorised to consult, negotiate and enter into financial arrangements with other persons or bodies as may be necessary or desirable for the development of the land for which it is responsible. The Trust is also empowered to take, instigate or support any action that may be required to ensure the most beneficial use of the land.

These provisions relate to all land held by the Trust and not just to Aboriginal reserves.

The minerals and petroleum on or under land vested or held by the Aboriginal Lands Trust remain the property of the Crown and any mining or exploration is subject to the Mining Act. An administrative procedure exists so that royalty and rent equivalents for mining or exploration on trust land are paid from Consolidated Revenue to the Trust.

The Governor of Western Australia can proclaim land as Aboriginal reserves. Explorers and miners seeking to enter these reserves, if not themselves Aboriginal people, are required to obtain a permit from the Aboriginal Affairs Planning Authority. This obligation is in addition to the requirement to obtain any permits or approvals necessary under the Mining Act and Petroleum Act (see our commentary on mining and petroleum legislation).

Aboriginal Communities Act 1979 (WA)

Aboriginal communities may make bylaws relating to their community lands. These may be lands of any tenure which the Governor proclaims to be community lands.

These bylaws may prohibit and regulate entry onto those lands and may regulate the behaviour of people on those lands, in a manner and scope similar to local government bylaws.

Offenders are normally dealt with by community courts convened by the Aboriginal community concerned.
The provisions of this legislation apply to all people on proclaimed community lands - whether they are community members or not.

At present only a limited number of areas have been proclaimed.  

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Mining and petroleum legislation

Mining Act 1978 (WA)

Except for freehold land alienated before 1899, this Act states that all minerals are the property of the Crown and a mining title must be obtained before any exploration or mining may be undertaken.

Definitions

The legislation establishes three categories of land open for mining:

• Crown land, including land reserved for mining, commons for public utility, pastoral leases, leases for timber and leases for the use and benefit of Aboriginal inhabitants;
• public reserves including Aboriginal reserves; and
• private land.

Effect of the legislation

The Act provides that all Crown land is open for mining and anyone can apply to the Minister for State Development for the grant of a mining tenement over any Crown land. The legislation also entitles the holder of a miner's right, with some exceptions, to carry out exploration and prospecting work on Crown land which is not the subject of a mining tenement.

The procedures relating to 'mining' (which is defined to include prospecting and exploring) on reserves differ according to the nature of the reserve. Mining can take place on an Aboriginal reserve provided the Minister for State Development consents in writing. Before consenting, the Minister for State Development must consult with the Minister for Aboriginal Affairs. The consent may be given subject to terms and conditions.

These provisions do not remove the requirement to obtain an entry permit for an Aboriginal reserve from the Aboriginal Affairs Planning Authority before marking off or exploring on a reserve. In practice, the Minister for State Development will not grant tenement applications for which the Minister for Aboriginal Affairs advises an entry permit will not be issued.

It is a condition of all tenements issued pursuant to the Act that the grantee will comply with the provisions of the Aboriginal Heritage Act 1972 (see our commentary). Grantees of tenements under the Mining Act are liable for any compensation paid to native title holders in relation to the grant of the tenement.

Petroleum Act 1967 (WA)

This legislation controls all petroleum (oil and gas) exploration and production activities in the onshore areas of Western Australia and applies to all types of Crown and private land.

The Act states that all petroleum belongs to the Crown and gives the responsible Minister the power to grant titles for exploration and production purposes over all types of land tenure. All exploration permits carry specific work and expenditure commitments which the permit holder must meet annually.

The Aboriginal Affairs Planning Authority Act (see our commentary), which relates to the need for permits on Aboriginal reserves, applies to holders of any permit, licence or access authority under the Petroleum Act.

Grantees of titles issued under the Act are liable for any compensation paid to native title holders in relation to the grant of the title. 

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Heritage legislation

Aboriginal Heritage Act 1972 (WA)

The management of Aboriginal heritage in Western Australia is governed by the Aboriginal Heritage Act 1972 (WA), which establishes a register for 'Aboriginal sites'. The Act makes it an offence for any person to excavate, destroy, damage, conceal or in any way alter any 'Aboriginal site' without authorisation from the Registrar of Aboriginal Sites or the consent of the Minister for Aboriginal Affairs.

'Aboriginal site' is defined to mean:

• any place of importance and significance where people of Aboriginal descent have, or appear to have, left any natural or artificial object used for, or made or adapted for use for any purpose connected with, the traditional cultural life of the Aboriginal people, past or present;
• any sacred, ritual or ceremonial site, which is of importance and special significance to people of Aboriginal descent;
• any place which, in the opinion of the Aboriginal Cultural Material Committee, is or was associated with the Aboriginal people is of historical, anthropological, archaeological or ethnographical interest and should be preserved because of its importance and significance to the cultural heritage of the State; and
• any place where objects to which the Act applies are traditionally stored or have been taken, and any place from which they have been removed.

The Act also applies to objects of sacred, ritual or ceremonial significance to people of Aboriginal descent, and objects are used for any purpose connected with the traditional cultural life of the Aboriginal people. In addition, the Act applies to objects so nearly resembling an object of sacred significance to people of Aboriginal descent as to be likely to deceive or be capable of being mistaken for such an object.

The Governor of Western Australia may, on the recommendation of the Minister, declare an Aboriginal site to be a protected area and make regulations prohibiting, or imposing conditions on, activities such as people entering the area and activities within the area. Anyone contravening this regulation is guilty of an offence.

Penalties have recently been substantially increased for offences contained in the Act. An individual who commits a first offence for which there are no penalties specifically provided is liable, on summary conviction, to a $20,000 fine, a daily penalty of $400 and/or nine months imprisonment. A company is liable for a penalty of $50,000 and to a daily penalty of $1,000. Subsequent offences renders the individual or company liable to a penalty of $40,000 and $100,000 respectively.

The provisions of the Act relating to the protection of Aboriginal sites apply to all land in Western Australia. A defence is provided under the Act where desecration of sites occurs only if the person charged can prove that he or she did not know - and could not reasonably be expected to have known - that the place was a place to which the Act applies.

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. 

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Western Australian policy

Granting mining tenements where native title has been extinguished

The Western Australian Department of Industry and Resources will grant mining tenements in respect of land which is or was subject to the following tenure without following the procedures under the NTA:

• freehold;
• 'exclusive' leases granted before 23 December 1996;
• 'scheduled interests' (as listed in the NTA) granted before 23 December 1996; and
• public works commenced before 23 December 1996.

The Department will give priority in processing to applicants who can provide sufficient proof that their application lies wholly within any of the areas described above and will grant the tenement without following the procedures under the NTA.

If a mining tenement application includes an area of reserved or vacant Crown land where native title may continue to exist, the Department will consider a request from the applicant to grant the tenement, subject to those areas being excised from the tenement.

If the mining tenement application is not in respect of land which is or was subject to the above tenure, the Department of Industry and Resources will follow the relevant procedures under the NTA in relation to the grant of the relevant tenement.

The State Government has introduced a new policy which affects the manner in which applications for Exploration Licences and Prospecting Licences are managed. Where applicants have signed a Standard Heritage Agreement or can show that they have an existing Alternative Heritage Agreement in place, the applications are submitted to the NTA Expedited Procedure. Where no agreement exists, the applications are subject to the NTA right to negotiate procedure.

It is important when considering the validity of a previously granted tenement to be aware of the operation of the Land (Titles and Traditional Usage) Act 1993 (WA). This Act operated in respect of tenements granted on and from 1 January 1994 until it was struck down by the High Court on 16 March 1995. One effect of that Act being struck down is that some mining tenements granted, renewed or extended between those dates (and possibly for a time after) have been rendered potentially invalid because their grant, renewal or extension was required to - but did not - comply with the procedures under the NTA. However, when considering the potential invalidity of a particular tenement it is necessary to check whether that tenement has been validated under the Titles (Validation) and Native Title (Effects of Past Acts) Act 1995 (WA) (see our commentary).

Petroleum titles and native title - overview

Onshore

In respect of onshore areas, the Department of Industry and Resources will follow the right to negotiate procedures under the NTA where a native title claim has been made in respect of the area of any petroleum title application.

As a general overview, if a native title claim has already been made in respect of the area of the proposed title, or if an application for native title has been registered, the Department will notify the applicant and the native title party. It will then arrange a negotiation meeting to see if an agreement can be reached. If the parties, including the Government, reach agreement the licence can be granted. If agreement is not reached within six months of the notification, the matter may be referred to the National Native Title Tribunal for determination.

The Department will not grant a title unless a State Deed between the native title party (or parties), the State and the applicant has been signed and lodged with the National Native Title Tribunal.

In relation to the grant of an onshore pipeline licence, native title holders must be afforded the same procedural rights as holders of freehold title. The Petroleum Pipelines Act (PPA) requires an applicant for a petroleum pipeline licence to notify interested parties, which, by virtue of the Commonwealth NTA, includes native title holders.

The PPA requires an applicant for a pipeline licence to negotiate an easement or lease over the land on which the pipeline is to be built before construction of the pipeline can start. The applicant must liaise with the Department for Planning & Infrastructure in relation to the grant of such easement or lease. If an easement or lease cannot be negotiated, the PPA authorises the Minister to acquire any land or easement over the land. If the land is subject to native title, agreement must be reached with the native title parties or the land must be compulsorily acquired.

Offshore

Under the NTA, grants of petroleum or pipeline titles offshore may be made provided native title holders have the same procedural rights as people holding corresponding rights and interests in the offshore area. These rights may be rights to be notified and to object or to make submissions.

If holders of rights and interests which correspond to native title rights have no procedural rights, none need to be afforded to native title holders.

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