Native Title Act 1993

Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.

Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

If a provision referred to in subsection (2) does not commence under that subsection within the period of 9 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

to provide for the recognition and protection of native title; and

to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and

to establish a mechanism for determining claims to native title; and

to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.

This Act recognises and protects native title. It provides that native title cannot be extinguished contrary to the Act.

Essentially, this Act covers the following topics:

acts affecting native title (see subsections (3) to (6));

determining whether native title exists and compensation for acts affecting native title (see subsection (7)).

There are basically 2 kinds of acts affecting native title:

past acts (mainly acts done before this Act’s commencement on 1 January 1994 that were invalid because of native title); and

future acts (mainly acts done after this Act’s commencement that either validly affect native title or are invalid because of native title).

For past acts and future acts, this Act deals with the following matters:

their validity;

their effect on native title;

compensation for the acts.

However, for certain acts (called intermediate period acts) done mainly before the judgment of the High Court in Wik Peoples v Queensland (1996) 187 CLR 1, that would be invalid because they fail to pass any of the future act tests in Division 3 of Part 2, or for any other reason because of native title, this Act provides for similar consequences to past acts.

This Act also confirms that many acts done before the High Court’s judgment, that were either valid, or have been validated under the past act or intermediate period act provisions, will have extinguished native title. If the acts are previous exclusive possession acts (see section 23B), the extinguishment is complete; if the acts are previous non‑exclusive possession acts (see section 23F), the extinguishment is to the extent of any inconsistency.

This Act also:

provides for the Federal Court to make determinations of native title and compensation; and

provides for the Federal Court to refer native title and compensation applications for mediation; and

provides for the Federal Court to make orders to give effect to terms of agreements reached by parties to proceedings including terms that involve matters other than native title; and

establishes a National Native Title Tribunal with power to:

make determinations about whether certain future acts can be done and whether certain agreements concerning native title are to be covered by the Act; and

provide assistance or undertake mediation in other matters relating to native title; and

deals with other matters such as the keeping of registers and the role of representative Aboriginal/Torres Strait Islander bodies.

This Act is intended to be read and construed subject to the provisions of the Racial Discrimination Act 1975.

Subsection (1) means only that:

the provisions of the Racial Discrimination Act 1975 apply to the performance of functions and the exercise of powers conferred by or authorised by this Act; and

to construe this Act, and thereby to determine its operation, ambiguous terms should be construed consistently with the Racial Discrimination Act 1975 if that construction would remove the ambiguity.

Subsections (1) and (2) do not affect the validation of past acts or intermediate period acts in accordance with this Act.

Subject to subsection (2), Chapter 2 of the Criminal Code applies to all offences against this Act.

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Part 2.5 of the Criminal Code does not apply to an offence against Part 11 of this Act.

Native title is not able to be extinguished contrary to this Act.

An act that consists of the making, amendment or repeal of legislation on or after 1 July 1993 by the Commonwealth, a State or a Territory is only able to extinguish native title:

in accordance with Division 2B (which deals with confirmation of past extinguishment of native title) or Division 3 (which deals with future acts etc. and native title) of Part 2; or

by validating past acts, or intermediate period acts, in relation to the native title.