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Native Title Act 1993
In force
Administered by
Attorney-General's Department
Department of the Prime Minister and Cabinet
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C2016C00748 (C41)
01 July 2016
-
12 April 2017
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Part 1—Preliminary
1 Short title
2 Commencement
3 Objects
4 Overview of Act
5 Act binds Crown
6 Application to external Territories, coastal sea and other waters
7 Racial Discrimination Act
8 Effect of this Act on State or Territory laws
8A Application of the Criminal Code
9 Definitions located in Part 15
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Part 2—Native Title
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Division 1—Recognition and protection of native title
10 Recognition and protection of native title
11 Extinguishment of native title
13 Approved determinations of native title
Division 2—Validation of past acts
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Subdivision AA—Overview of Division
13A Overview of Division
Subdivision A—Acts attributable to the Commonwealth
14 Validation of Commonwealth acts
15 Effect of validation on native title
16 Preservation of beneficial reservations and conditions
17 Entitlement to compensation
18 Where just terms invalidity
Subdivision B—Acts attributable to a State or Territory
19 State/Territory acts may be validated
20 Entitlement to compensation
Division 2A—Validation of intermediate period acts etc.
Subdivision A—Overview of Division
21 Overview of Division
Subdivision B—Acts attributable to the Commonwealth
22A Validation of Commonwealth acts
22B Effect of validation on native title
22C Preservation of beneficial reservations and conditions
22D Entitlement to compensation
22E Where “just terms” invalidity
22EA Requirement to notify: mining rights
Subdivision C—Acts attributable to a State or Territory
22F State/Territory acts may be validated
22G Entitlement to compensation
22H Requirement to notify: mining rights
Division 2AA—Validation of transfers under New South Wales land rights legislation
22I Overview of Division
22J Validation of transfers
22K Effect of validation on native title
22L Entitlement to compensation
Division 2B—Confirmation of past extinguishment of native title by certain valid or validated acts
23A Overview of Division
23B Previous exclusive possession act
23C Confirmation of extinguishment of native title by previous exclusive possession acts of Commonwealth
23D Preservation of beneficial reservations and conditions
23DA Confirmation of validity of use of certain land held by Crown etc.
23E Confirmation of extinguishment of native title by previous exclusive possession acts of State or Territory
23F Previous non exclusive possession act
23G Confirmation of partial extinguishment of native title by previous non exclusive possession acts of Commonwealth
23H Preservation of beneficial reservations and conditions
23HA Notification
23I Confirmation of partial extinguishment of native title by previous non exclusive possession acts of State or Territory
23J Compensation
23JA Attribution of certain acts
Division 3—Future acts etc. and native title
Subdivision A—Preliminary
24AA Overview
24AB Order of application of provisions
24AC Regulations about notification
Subdivision B—Indigenous land use agreements (body corporate agreements)
24BA Indigenous land use agreements (body corporate agreements)
24BB Coverage of body corporate agreements
24BC Body corporate agreements only where bodies corporate for whole area
24BD Parties to body corporate agreements
24BE Consideration and conditions
24BF Assistance to make body corporate agreements
24BG Application for registration of body corporate agreements
24BH Notice of body corporate agreements
24BI Registration of body corporate agreements
Subdivision C—Indigenous land use agreements (area agreements)
24CA Indigenous land use agreements (area agreements)
24CB Coverage of area agreements
24CC Requirement that no bodies corporate for whole of area
24CD Parties to area agreements
24CE Consideration and conditions
24CF Assistance to make area agreements
24CG Application for registration of area agreements
24CH Notice of area agreements etc.
24CI Objections against registration
24CJ Decision about registration
24CK Registration of area agreements certified by representative bodies
24CL Registration of area agreements not certified by representative Aboriginal/Torres Strait Islander bodies
Subdivision D—Indigenous land use agreements (alternative procedure agreements)
24DA Indigenous land use agreements (alternative procedure agreements)
24DB Coverage of alternative procedure agreements
24DC No extinguishment of native title
24DD Bodies corporate and representative bodies etc.
24DE Parties to alternative procedure agreements
24DF Consideration and conditions
24DG Assistance to make alternative procedure agreements
24DH Application for registration of alternative procedure agreements
24DI Notice of alternative procedure agreements
24DJ Objections against registration
24DK Decision about registration
24DL Registration of alternative procedure agreements
24DM Other registration procedures and conditions
Subdivision E—Effect of registration of indigenous land use agreements
24EA Contractual effect of registered agreement
24EB Effect of registration on proposed acts covered by indigenous land use agreements
24EBA Effect of registration on previous acts covered by indigenous land use agreements
24EC Agreements unrelated to future acts
Subdivision F—Future acts: if procedures indicate absence of native title
24FA Consequences if section 24FA protection applies
24FB When section 24FA protection arises—government applications
24FC When section 24FA protection arises—non government applications
24FD When section 24FA protection arises—entry on National Native Title Register
24FE Relevant native title claim
Subdivision G—Future acts and primary production
24GA Primary production activity
24GB Acts permitting primary production on non exclusive agricultural and pastoral leases
24GC Primary production etc. activities on non exclusive agricultural or pastoral leases
24GD Acts permitting off farm activities that are directly connected to primary production activities
24GE Granting rights to third parties etc. on non exclusive agricultural or pastoral leases
Subdivision H—Management of water and airspace
24HA Management or regulation of water and airspace
Subdivision I—Renewals and extensions etc.
24IA Future acts to which this section applies
24IB Pre existing right based acts
24IC Future acts that are permissible lease etc. renewals
24ID Effect of Subdivision applying to an act
Subdivision JA—Public housing etc.
24JAA Public housing etc.
Subdivision J—Reservations, leases etc.
24JA Acts covered by this Subdivision
24JB Treatment of acts covered by section 24JA
Subdivision K—Facilities for services to the public
24KA Facilities for services to the public
Subdivision L—Low impact future acts
24LA Low impact future acts
Subdivision M—Acts passing the freehold test
24MA Legislative acts
24MB Non legislative acts
24MC Only onshore places covered
24MD Treatment of acts that pass the freehold test
Subdivision N—Acts affecting offshore places
24NA Acts affecting offshore places
Subdivision O—Future acts invalid unless otherwise provided
24OA Future acts invalid unless otherwise provided
Subdivision P—Right to negotiate
25 Overview of Subdivision
26 When Subdivision applies
26A Approved exploration etc. acts
26B Approved gold or tin mining acts
26C Excluded opal or gem mining
26D Excluded mining acts: earlier valid acts
27 Arbitral body
27A Relevant Minister
27B Conditions under agreements or determinations etc.
28 Act invalid if done before negotiation or objection/appeal etc.
29 Notification of parties affected
30 Other native title parties etc.
30A Negotiation parties
31 Normal negotiation procedure
32 Expedited procedure
33 Negotiations to include certain things
34 No agreement if determination
35 Application for arbitral body determination
36 Arbitral body determination to be made as soon as practicable
36A Ministerial determination if arbitral body determination delayed
36B Consultation prior to section 36A determination
36C Section 36A determinations
37 No arbitral body determination if agreement or Ministerial determination
38 Kinds of arbitral body determinations
39 Criteria for making arbitral body determinations
40 No re opening of issues previously decided
41 Effect of determination or agreement
41A Copies of agreements and determinations
42 Overruling of determinations
42A Project acts—modified application of Subdivision
43 Modification of Subdivision if satisfactory alternative State or Territory provisions
43A Exception to right to negotiate: satisfactory State/Territory provisions
43B Mining rights covering both alternative provision area and other area
44 Additional operation of Subdivision
Subdivision Q—Conferral of access rights on native title claimants in respect of non exclusive agricultural and pastoral leases
44A Conditions for Subdivision to apply
44B Rights of access for traditional activities
44C Suspension of native title rights
44D Certain other laws not affected
44E Federal Court jurisdiction
44F Request for mediation
44G Other mediation, arbitration and agreements not excluded by Subdivision
Division 4—Other provisions relating to native title
44H Rights conferred by valid leases etc.
45 RDA compensation to be determined under this Act
46 Effect of grant of leases and licences validated by McArthur River legislation
47 Pastoral leases held by native title claimants
47A Reserves etc. covered by claimant applications
47B Vacant Crown land covered by claimant applications
Division 5—Determination of compensation for acts affecting native title etc.
48 Compensation payable in accordance with Division
49 No multiple compensation for essentially same act
50 Bodies that may determine compensation
51 Criteria for determining compensation
51A Limit on compensation
52 Bank guarantee required under right to negotiate procedures
52A Payment held in trust under right to negotiate procedures
53 Just terms compensation
54 Commonwealth compensation payable from CRF
Division 6—Native title functions of prescribed bodies corporate and holding of native title in trust
55 Determinations by Federal Court
56 Determination whether native title to be held in trust
57 Determination of prescribed body corporate etc.
58 Functions under regulations
59 Kinds of prescribed bodies corporate may be determined
59A Prescribed bodies corporate for subsequent determinations of native title
60 Replacement of agent prescribed bodies corporate
60AA Body corporate for Meriam people
Division 7—Financial matters
60AB Fees for services provided by registered native title bodies corporate in performing certain functions
60AC Opinion of the Registrar of Aboriginal and Torres Strait Islander Corporations
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Part 3—Applications
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Division 1AA—Overview of Part
60A Overview of Part
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Division 1—Applications to the Federal Court: native title and compensation
61 Native title and compensation applications
61A Restrictions on making of certain applications
62 Information etc. in relation to certain applications
62A Power of applicants where application authorised by group
63 Reference of applications to Native Title Registrar
64 Amendment of applications
66 Notice of application
66A Notice of amended application
66B Replacing the applicant
66C Registrar’s role in relation to certain applications relating to future acts
67 Overlapping native title determination applications
68 Only one determination of native title per area
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Division 1A—Other applications to the Federal Court
69 Applications that may be made
70 Federal Court Rules about applications etc.
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Division 2—Applications to the National Native Title Tribunal: right to negotiate
75 Right to negotiate applications
76 Material and fees to accompany applications
77 Action to be taken in relation to applications
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Division 2A—Applications to the Native Title Registrar: objections against registration of indigenous land use agreements
77A Material and fees to accompany applications
77B Action to be taken in relation to applications
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Division 3—Miscellaneous
78 Assistance in relation to proceedings
79 Requests for non monetary compensation
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Part 4—Determinations of the Federal Court
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Division 1—Overview of Part
79A Overview of Part
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Division 1A—General
80 Operation of Part
81 Jurisdiction of the Federal Court
82 Federal Court’s way of operating
83 Assessor assisting the Federal Court
83A Federal Court may request searches to be conducted
84 Parties
84A Intervention by Commonwealth Minister
84B Parties may appoint an agent
84C Striking out applications for failure to comply with requirements of this Act
84D Proceedings affected by possible defect in authorisation
85 Representation before Federal Court
85A Costs
86 Evidence and findings in other proceedings
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Division 1B—Reference for mediation
86A Purpose of mediation
86B Referral of matters for mediation
86BA Mediator may appear before the Court
86C Cessation of mediation
86D Federal Court’s powers
86E Federal Court may request reports from a mediator
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Division 1C—Agreements and unopposed applications
86F Agreement to settle application etc.
86G Unopposed applications
87 Power of Federal Court if parties reach agreement
87A Power of Federal Court to make determination for part of an area
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Division 2—Conferences etc.
88 Conferences
89 Right of appearance
90 Participation by telephone etc.
91 Conferences to be held in public except in special circumstances
92 Federal Court may prohibit disclosure of evidence
93 Powers of assessor to take evidence
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Division 3—Orders
94 Order that compensation is payable
94A Order containing determination of native title
94B Order relating to an application that has been referred for mediation
94C Order dismissing an application relating to a future act
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Division 4—Mediation
94D Mediation conferences
94E Parties at conferences
94F Other persons attending or participating in conferences
94G Producing documents
94H Referral of questions of fact or law
94J Referral of questions about whether a party should be dismissed
94K Conferences to be held in private
94L Person conducting the mediation may prohibit disclosure of information etc.
94M Person conducting the mediation etc. must not be required to give evidence or produce documents to a court
94N Report etc. to be given to Federal Court
94P Reports about breaches of the requirement to act in good faith
94Q Public reporting about breaches of the requirement to act in good faith
94R Protection of person conducting the mediation
94S Regulations about mediation
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Part 5—Native Title Registrar
95 Appointment of Registrar
96 President may give directions to Registrar
96A Powers of Registrar—ILUAs and future act negotiations
97 Powers of Registrar—applications
97A Searches for Federal Court etc.
98 Powers of Registrar—registers
98A Power of Registrar—other public records and information
99 Delegation by Registrar
100 Remuneration and allowances
101 Terms and conditions of appointment
102 Leave of absence
103 Resignation
104 Termination of appointment
105 Outside employment
106 Disclosure of interests by Registrar
106A Appointment of acting Registrar
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Part 6—National Native Title Tribunal
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Division 1—Establishment, purpose and way of operating
107 Establishment of the National Native Title Tribunal
108 Function of the Tribunal
109 Tribunal’s way of operating
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Division 2—Membership of the National Native Title Tribunal
110 Membership of the Tribunal
111 Appointment of members of Tribunal
112 Appointment of a Judge or an assessor as a member not to affect tenure etc.
113 Delegation to members
114 Remuneration and allowances
115 Terms and conditions of appointment
116 Oath or affirmation of office
117 Leave of absence
118 Resignation
119 Termination of appointment—members other than Judges or assessors
120 Suspension of members other than a Judge—misbehaviour or incapacity
121 Outside employment
122 Disclosure of interests
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Division 3—Organisation of the Tribunal
123 Arrangement of business
124 Constitution of Tribunal for exercise of powers
125 Reconstitution of the Tribunal
126 Member presiding
127 Places of sitting
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Division 4—Management of the Tribunal
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Subdivision A—Management responsibilities etc. of President of Tribunal and Federal Court Chief Executive Officer
128 Management of administrative affairs of Tribunal
129 Federal Court Chief Executive Officer
129A Delegation by Federal Court Chief Executive Officer
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Subdivision B—Other officers, staff and consultants
130 Deputy Registrars and staff etc.
131A President may arrange for consultants to be engaged
131B Disclosure of interests
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Subdivision C—Miscellaneous administrative matters
133 Annual report
136 Proceedings arising out of administrative affairs of Tribunal
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Division 4AA—Review on whether there are native title rights and interests
136GC Review on whether there are native title rights and interests
136GD Member conducting a review may prohibit disclosure of information
136GE Reports
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Division 4B—How assistance, mediation or review is to be provided
136H Regulations about assistance, mediation or review
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Division 5—Inquiries and determinations by the Tribunal
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Subdivision A—Special inquiries
137 Special inquiries
138 Notice
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Subdivision AA—Native title application inquiries
138A Application
138B Native title application inquiries
138C Tribunal to hold inquiry
138D Notice to be given to certain persons before inquiry is held
138E Relationship to mediation and reviews on whether there are native title rights and interests
138F Cessation of inquiry
138G Inquiries may cover more than one proceeding
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Subdivision B—Inquiries—General
139 Inquiries
140 Inquiries may cover more than one matter
141 Parties
142 Opportunity to make submissions concerning evidence
143 Representation before Tribunal
144 Manner in which questions to be decided
145 Reference of questions of law to the Federal Court
146 Evidence and findings in other proceedings
147 Power of Tribunal where a proceeding is frivolous or vexatious
148 Power of Tribunal where no jurisdiction, failure to proceed etc.
149 Power of Tribunal where applicant requests dismissal
149A Power of Tribunal to reinstate application
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Subdivision C—Conferences and hearings
150 Conferences
151 Hearings
152 Right of appearance
153 Participation by telephone etc.
154 Hearings to be held in public except in special circumstances
154A Exception—hearings to be held in private if held during course of a native title application inquiry
155 Tribunal may prohibit disclosure of evidence
156 Powers of Tribunal to take evidence
157 Tribunal may authorise another person to take evidence
158 Interpreters
159 Retention and copying of documents
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Subdivision D—Determinations and reports
162 Determination of the Tribunal—right to negotiate applications
163 Reports after special inquiries
163AA Reports after inquiries into subsection 24DJ(1) objection applications
163A Reports after native title application inquiries
164 Determinations and reports to be in writing
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Subdivision F—Appeals
169 Appeals to Federal Court from decisions and determinations of the Tribunal
170 Operation and implementation of a decision or determination that is subject to appeal
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Division 6—Offences
171 Failure of witness to attend
172 Refusal to be sworn or to answer questions etc.
173 Giving of false or misleading evidence
174 Refusal to produce document
176 Contravention of direction prohibiting disclosure of evidence
177 Contempt of Tribunal
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Division 7—Miscellaneous
178 Sending of documents to the Federal Court
179 Return of documents etc. at completion of proceeding
180 Protection of members and persons giving evidence
181 Confidential information not to be disclosed
182 Fees for persons giving evidence
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Part 7—Register of Native Title Claims
184 Claims to native title
185 Register of Native Title Claims
186 Contents of the Register
187 Inspection of the Register
188 Parts of the Register may be kept confidential
189 Senior Registrar of the High Court to notify Registrar
189A Federal Court Chief Executive Officer to notify Native Title Registrar
190 Keeping the Register
190A Registrar to consider claims
190B Registration: conditions about merits of the claim
190C Registration: conditions about procedural and other matters
190D If the claim cannot be registered—notice of decision
190E If the claim cannot be registered—reconsideration by the NNTT
190F If the claim cannot be registered—review by Federal Court
191 Delegation by Registrar to recognised State/Territory body
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Part 8—National Native Title Register
192 National Native Title Register
193 Contents of the Register
194 Inspection of the Register
195 Parts of the Register may be kept confidential
197 Keeping the Register
198 Delegation by Registrar to recognised State/Territory body
199 Registrar to notify land titles office
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Part 8A—Register of Indigenous Land Use Agreements
199A Register of Indigenous Land Use Agreements
199B Contents of the Register etc.
199C Removal of details of agreement from Register
199D Inspection of the Register
199E Parts of the Register to be kept confidential
199F Delegation by Registrar
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Part 9—Financial assistance to States and Territories
200 Financial assistance to States and Territories
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Part 11—Representative Aboriginal/Torres Strait Islander bodies
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Division 1—Preliminary
201A Definitions
201B Eligible bodies
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Division 2—Recognition of representative Aboriginal/Torres Strait Islander bodies
203A Inviting applications for recognition
203AA Revocation of invitations
203AAA Eligible body must notify the Commonwealth Minister if it decides not to apply for recognition etc.
203AB Application for recognition
203AC Dealing with applications
203AD Recognition of representative bodies
203AE Commonwealth Minister may vary an area for which a body is the representative body
203AF Notification requirements for the variation of an area on the Commonwealth Minister’s own initiative
203AG Notice of decision on variation
203AH Withdrawal of recognition
203AI Matters to which Commonwealth Minister must have regard
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Division 3—Functions and powers of representative bodies
203B Functions of representative bodies
203BA How functions of representative bodies are to be performed
203BB Facilitation and assistance functions
203BC How facilitation and assistance functions are to be performed
203BD Matters that overlap different representative body areas
203BE Certification functions
203BF Dispute resolution functions
203BG Notification functions
203BH Agreement making function
203BI Internal review functions
203BJ Other functions
203BK Powers of representative bodies
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Division 4—Finance
203C Funding of representative bodies
203CA Conditions of funding
203CB Banking and investment
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Division 5—Accountability
203DA Accounting records
203DB Payments to be properly made etc.
203DF Inspection and audit, or investigation, of a representative body
203DG Access to information
203DH Effect of withdrawal of recognition
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Division 6—Conduct of directors and other executive officers
203E Application of Division
203EA Representative bodies that are not corporations
203EB Representative bodies registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006
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Division 7—Miscellaneous
203F Secretary to inform Minister of certain matters
203FB Review of assistance decisions
203FBA External review
203FBB Review by Secretary of the Department
203FC Transfer of documents and records
203FCA Representative body etc. to comply with wishes of traditional custodians
203FD Liability of executive officers etc.
203FE Provision of funding by the Commonwealth
203FEA Application of this Act to persons and bodies funded under subsection 203FE(1)
203FEB Application of this Act to persons and bodies funded under subsection 203FE(2)
203FEC Certain provisions do not apply to persons and bodies funded under subsection 203FE(1) or (2)
203FED Liability
203FF Financial and accountability requirements imposed by other legislation
203FG False statements etc.
203FH Conduct by directors, employees and agents
203FI Delegation
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Part 12A—State/Territory bodies
207A Recognised State/Territory body
207B Equivalent State/Territory bodies
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Part 13—Miscellaneous
208 Act not to apply so as to exceed Commonwealth power
209 Reports by Aboriginal and Torres Strait Islander Social Justice Commissioner
210 Operation of beneficial land rights laws not affected
211 Preservation of certain native title rights and interests
212 Confirmation of ownership of natural resources, access to beaches etc.
213 Provisions relating to Federal Court jurisdiction
213A Assistance from Attorney General
214 Application of amended rules of evidence in proceedings before the Federal Court
215 Regulations
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Part 15—Definitions
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Division 1—List of definitions
222 List of definitions
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Division 2—Key concepts: Native title and acts of various kinds etc.
223 Native title
224 Native title holder
225 Determination of native title
226 Act
227 Act affecting native title
228 Past act
229 Category A past act
230 Category B past act
231 Category C past act
232 Category D past act
232A Intermediate period act
232B Category A intermediate period act
232C Category B intermediate period act
232D Category C intermediate period act
232E Category D intermediate period act
233 Future act
237 Act attracting the expedited procedure
237A Extinguish
238 Non extinguishment principle
239 Act attributable to the Commonwealth, a State or a Territory
240 Similar compensable interest test
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Division 3—Leases
241 Coverage of Division
242 Lease
243 Lessee
244 Permit
245 Mining lease
246 Commercial lease
247 Agricultural lease
247A Exclusive agricultural lease
247B Non exclusive agricultural lease
248 Pastoral lease
248A Exclusive pastoral lease
248B Non exclusive pastoral lease
249 Residential lease
249A Community purposes lease
249B Perpetual lease
249C Scheduled interest
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Division 4—Sundry definitions etc.
250 Application to things happening before commencement
251A Authorising the making of indigenous land use agreements
251B Authorising the making of applications
251C Towns and cities
251D Land or waters on which a public work is constructed, established or situated
252 Notify the public in the determined way
253 Other definitions
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Schedule 1—Scheduled interests
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Part 1—New South Wales
1 Crown Lands Occupation Act 1861
2 Crown Lands Act 1884
3 Western Lands Act 1901, Crown Lands Consolidation Act 1913 and other land Acts
4 Returned Soldiers Settlement Act 1916
5 Closer Settlement Amendment (Conversion) Act 1943
6 Crown Lands Act 1989
7 National Parks legislation
8 Various Acts
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Part 2—Victoria
9 Land Acts etc.
10 Water Acts etc.
11 Forests Acts
12 National Parks Act 1975
13 Alpine Resorts Act 1983
14 Gardens Acts
15 Settlement Acts etc.
16 Crown Land (Reserves) Act 1978
17 Melbourne and Metropolitan Board of Works Acts
18 Port Acts etc.
19 Railway and Transport Acts
20 Various Acts
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Part 3—Queensland
21 Leases under various Land Acts etc.
22 Freeholding leases
23 Homestead interests
24 Settlement farm leases
25 Agricultural farms
26 Perpetual lease selections
27 Perpetual town leases
28 Perpetual suburban leases
29 Perpetual country leases
30 Prickly pear related interests
31 Leases under agreements given the force of law
32 Various interests
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Part 4—Western Australia
33 Legislation before 1898
34 Land Act 1898 and Land Act 1933
35 Other legislation after 1898
36 Leases under certain mining related and other Acts
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Part 5—South Australia
37 Perpetual leases and leases for a term of years
38 Miscellaneous leases
39 Other interests
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Part 6—Tasmania
40 Crown Lands Acts
41 Closer Settlement Act 1929
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Part 7—Northern Territory
42 Town leases etc.
43 Agricultural leases etc.
44 Leases for special purposes etc.
45 Miscellaneous leases
46 Other leases
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Endnotes
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history