Further to Circular No. 98-66, all Departments, agencies, statutory authorities and state owned corporations are advised that the State Parliament has now passed the Native Title (New South Wales) Amendment Act. This Act is the State's response to the Commonwealth's new native title legislation. Both the State Act and the Commonwealth Act commenced on 30 September 1998.

In summary, the State Act:

• validates certain grants made during the period 1/1/94 to 23/12/96;
• confirms that native title has been extinguished in the past by the grant of certain types of title (e.g. freehold, residential and commercial leases, leases for community purposes, and leases listed in a Schedule to the Commonwealth Act);
• allows the validation of future acts by way of indigenous land use agreements;
• sets up a new procedure for certain compulsory acquisitions and lease renewals, and confers jurisdiction on the ADT to hear objections to such acts;
• amends the procedure for notifying native title holders where there has been no determination of native title;
• amends mining legislation in relation to low impact exploration and opal mining;
• removes redundant provisions in the Native Title (New South Wales) Act and makes State law consistent with the Commonwealth's law.

Departments, agencies, statutory authorities and state owned corporations should make themselves familiar with the new State and Commonwealth legislation. In particular, attention should be paid to new requirements to notify native title holders about certain acts and new requirements concerning compulsory acquisitions. Attached is a note which gives more detail about compulsory acquisitions and transitional provisions.

The State legislation does not replicate all the obligations imposed by the Commonwealth legislation. Accordingly, officers dealing with native title issues should familiarise themselves with the Commonwealth's Native Title Act. An up to date reprint of the amended Native Title Act can now be purchased.

Where officers are in doubt as to whether their procedures meet the new requirements of the State and Commonwealth laws, legal advice should be sought.

R B Wilkins Contact: Anne Twomey (telephone: 9228 5543)
Director-General Date: 30 September 1998

NEW NATIVE TITLE PROCEDURES

Transitional provisions

If a Department, agency, statutory authority or state owned corporation is currently involved in the right to negotiate procedure, the transitional procedures in Schedule 5 to the Native Title Act (Cth) will apply. The applicable law will depend upon the stage which the right to negotiate procedure has reached. In very bald terms, procedures which are towards their end can be completed under the old provisions, but recently initiated right to negotiate procedures are to continue under the new provisions. Legal advice should be sought on the way in which the right to negotiate should proceed.

Officers should also be aware that some of the future act' provisions apply back to 23 December 1996 (the date of the Wik decision). These include the provisions concerning primary production acts, the regulation of water, renewals and extensions of leases, the doing of acts on reserved land and the provisions of facilities for services to the public. Details can be found in Schedule 5 of the Native Title Act (Cth).

The transitional provisions also deal with the application of the new registration test and the re-testing of claims that have already been registered. The priority of re-testing claims is affected when a s. 29 notice is issued. This also has an impact on the Department of Land & Water Conservation and its ability to provide information to the Native Title Tribunal for the re-testing of claims. Accordingly, before any s. 29 notice is issued, the Native Title Unit of the Department of Land & Water Conservation should be advised.

Compulsory Acquisitions

Officers involved in the compulsory acquisition of land or waters, should note the following:

• If the compulsory acquisition may affect native title rights and interests, the requirements of the Native Title Act (Cth) must be met. Other relevant provisions can be found in the Native Title (New South Wales) Act (as amended) and the Land Acquisition (Just Terms Compensation) Act.
• If the land is being acquired for the purpose of conferring rights or interests in relation to the land on the Government party that is doing the acquisition, the Government party must make a statement in writing to that effect before the acquisition takes place. Otherwise the right to negotiate procedure will apply.
• If the purpose of the acquisition is to confer rights or interests in the land on non-government bodies or persons for the construction of infrastructure, then a new procedure under s. 24MD(6B) of the Native Title Act (Cth)will apply. This is supplemented by Part 7 of the Native Title (New South Wales) Act which confers jurisdiction on the ADT.
• If the purpose of the acquisition is to confer rights or interests in the land on non-government bodies or persons, and it is not for infrastructure purposes, then the right to negotiate will apply, unless the land is in an offshore place or the intertidal zone, or the acquisition is authorised by an indigenous land use agreement.
• Care will need to be taken in determining the purpose' of the acquisition. If there is any question at all of rights being conferred upon a third party (even if it only be a short-term lease for a public purpose) great care would have to be taken before it could be characterised as an acquisition for the purpose of conferring rights on the Government party. In such cases legal advice should be sought.