NATIVE TITLE (APPROVED OPAL OR GEM MINING AREA – WHITE CLIFFS aREA NEW SOUTH WALES) DETERMINATION 2026

EXPLANATORY STATEMENT

Issued by the authority of the Attorney-General
Under section 26C of the Native Title Act 1993 (Cth).

PURPOSE AND OPERATION OF THE INSTRUMENT

This instrument specifies an area of land or waters for the purposes of subsection 26C(2) of the Native Title Act 1993 (Cth) (the Act). Section 26C is in Part 2, Division 3, Subdivision P of the Act.

Subdivision P sets out the procedures that apply to certain future acts carried out by the Commonwealth, a State or a Territory that affect native title. These future acts are largely grants of certain mining rights and some forms of compulsory acquisition. Compliance with these procedures, known as the right to negotiate procedures, is necessary to ensure the validity of those acts.

Section 26C excludes certain opal and gem mining from the operation of subdivision P in certain circumstances. Subsections 26C(1) and (1A) defines when the subdivision will not apply to an act, including that the act relates solely to land or waters within an approved opal or gem mining area as described in subsection 26C(2).

Under subsection 26C(2), the Commonwealth Minister may determine that an area is an “approved opal or gem mining area,” provided the conditions described in subsections (3) to (5A) are satisfied.

Areas determined:

The Attorney-General has determined an area within the White Cliffs Mineral Claims District, NSW as an approved opal or gem mining area under subsection 26C(2). A description of the relevant area is contained in the scheduled to the determination made by the Attorney-General.

The 4 conditions and how they have been met

Subsection 26C(3) requires the relevant State Minister to make a written request to the Attorney-General as the relevant Commonwealth Minister seeking the making of the determination.

This condition was met when, by letter dated 6 February 2026, the New South Wales Attorney General, the Hon Michael Daley MP requested the Commonwealth Attorney‑General determine certain land at White Cliffs as an ‘approved opal or gem mining area’.

Section 26C(4) requires that the Commonwealth Minister is satisfied, having regard to any mining rights conferred in the past in the area, and any other relevant matter, that in the future at least some rights will be conferred to mine in the area that will allow:

 i. mining for opals or gems (other than mining consisting of exploring, prospecting or puddling) only in an area no larger than 5 hectares, or

ii. mining consisting of puddling in respect of opals or gems only in an area no larger than 5 hectares;

iii. mining consisting of exploration or prospecting for opals or gems in an area no larger than 500 hectares and

iv. be conferred for a period of no more than 5 years, and

v.  if rights are renewed one or more times be renewed for a period of no more than 5 years at a time.

This condition was met as the Attorney-General was satisfied, having regard to mining rights conferred in the past in the area that in the future rights will be conferred to mine in the area with the relevant restrictions.  

Mining has occurred in White Cliffs since the early 1990s. Materials considered by the Attorney-General included the NSW Attorney General’s letter in which pending applications and renewals are references, and a copy of a gazetted notice confirming the historical grant of a mining reserve over the relevant claim area in 1959.

Section 26C(5) of the Act requires the relevant State Minister to undertake a public notification process before making the request. This includes notifying any registered native title bodies corporate, registered native title claimants and representative Aboriginal or Torres Strait Islander bodies in relation to any part of the area. The relevant State Minister is required to invite submissions on the proposed request and to consider any submissions received. Where legislation (as in these circumstances) establishes a formal consultation process (under which persons may make submissions about the effect of the determination), the department considers that the legislated process is the appropriate mechanism for stakeholder views to be ventilated and addressed.

In his written request to the Commonwealth Attorney-General, the New South Wales Attorney General provided materials that evidenced his satisfaction of this condition. This included copies of the relevant notification materials and all submissions received in response. This included copies of notices published in The Land, The Daily Telegraph and the Koori Mail, and copies of notices were also provided to the relevant registered native title body corporate, and their representative Aboriginal or Torres Strait Islander body.

Materials provided with the New South Wales Attorney General’s request indicate that a total of 40 submissions were received from miners, residents and other stakeholders within the White Cliffs community. All submissions expressed clear support for the proposed determination. Many submissions highlighted the long history of opal mining in the area, the economic and social significance of mining to the community and the need for certainty to allow mining activity to resume. Several submissions also noted the significant community hardship experienced during the period in which mining had been unable to proceed and emphasised the importance of the determination in restoring activity and stability.

No objections were received. All submissions supported the making of the determination.

Section 26C(5A) of the Act requires the relevant Commonwealth Minister to be satisfied that mining for opals or gems was being carried on in the whole, or a substantial part, of the proposed determination area.

To support this, the New South Wales Attorney General request included a map illustrating the extent of current mining activity within the determination area, accompanied by a description stating that “mining activity covers more than 60% of the proposed determination area”. The New South Wales Attorney General also advised that there were 191 current and pending claims within the Main Field. On the basis of this information, the Commonwealth Attorney‑General was satisfied that mining for opals was being carried on in a substantial part of the determination area.

Having been satisfied that the 4 conditions had been met (as outlined above), the Commonwealth Attorney‑General determined an approved opal or gem mining area as described in as described in the determination.

Consultation:

As outlined above consultation was undertaken in accordance with the process outlined in subsection 26C(5).

The Statement is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A Statement of Compatibility with Human Rights is set out in Attachment A.

The Statement is a legislative instrument for the purposes of the Legislation Act 2003. Details of the instrument are set out in Attachment B.

ATTACHMENT A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

This disallowable legislative instrument, Native Title (Approved Opal or Gem Mining Area – White Cliffs Area, New South Wales) Determination 2026 (the Determination), is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

Overview of the Legislative Instrument

This instrument specifies an area of land or waters for the purposes of subsection 26C(2) of the Native Title Act 1993 (Cth) (the Act) as an ‘approved opal or gem mining area’. Section 26C is in Part 2, Division 3, Subdivision P of the Act.

Subdivision P sets out the procedures that apply to certain future acts carried out by the Commonwealth, a State or a Territory that affect native title. These future acts are largely grants of certain mining rights and some forms of compulsory acquisition. Compliance with these procedures, known as the right to negotiate procedures, is necessary to ensure the validity of those acts.

The right to negotiate procedures requires a negotiation about the effect of the proposed act on registered native title rights and interests with native title groups with a view to obtaining agreement to the doing of the act or the doing of the act subject to conditions. 

The right to negotiate procedures do not apply within an approved opal or gem mining area. An approved opal or gem mining area can only be declared, pursuant to subsection 26C(2) of the Act, in areas where opal or gem mining is already occurring in at least a substantial part of the area. 

The Attorney-General has determined an area within the White Cliffs Mineral Claims District, NSW as an approved opal or gem mining area under subsection s26C(2). A description of the relevant area is contained in the scheduled to the determination made by the Attorney-General.

Human Rights Implications

This Disallowable Legislative Instrument engages the following rights and freedoms:

• the right to enjoy and benefit from culture in Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 27 of the International Covenant on Civil and Political Rights (ICCPR)
• the right to self-determination in Article 1 of the ICCPR and Article 1 of the ICESCR.

The right to enjoy and benefit from culture

Article 27 of the ICCPR protects the rights of individuals belonging to minorities within a country to enjoy their own culture, religion and language along with other members of their community.[1] First Nations people are generally regarded as a minority for the purposes of Article 27. Article 15 of the ICESCR protects the right of all persons to take part in cultural life. Read together, these rights protect the right of First Nations people to own, develop, control and use their communal lands, territories and resources as part of their cultural identity and practices.

The practical effect of an instrument made for the purposes of section 26C is to exclude the grant or renewal of small-scale opal or gem mining from the right to negotiate processes under the Act. Section 26C of the Act was introduced by the Native Title Amendment Act 1998 (Cth). The Explanatory memorandum for the introduction of section 26C is that ‘these acts are excluded because of the small scale and low impact of the mining concerned’.[2] The intended effect of the making of an instrument for the purposes of section 26C is therefore to exempt compliance with the right to negotiate procedures where there is already limited effect on the ability for minority groups, such as native title groups, to enjoy and exercise their rights and interests on areas where certain small scale opal and gem mining occur. This achieves efficiency in allowing certain mining activities to occur on specific areas of land where there is limited interference to the ability to enjoy and exercise rights, including as part of cultural identity and practices.

Subsection 26C(5) of the Act makes the Attorney-General’s power to make the determination conditional upon the relevant State or Territory Minister having, in general terms: (a) notified the public and other relevant persons about his or her intention to make the request; (b) invited submissions about the request; and (c) considered those submissions. Where legislation (as in these circumstances) establishes a formal consultation process (under which persons may make submissions about the effect of the determination), the legislated process is the appropriate mechanism for stakeholder views to be ventilated and addressed. This process included notifying the public through local and relevant media outlets as well as providing notifications to the registered native title bodies corporate and their representative Aboriginal or Torres Strait Islander body.

A total of 40 submissions were received from miners, residents and other stakeholders within the White Cliffs community. All submissions expressed clear support for the proposed section 26C determination, and no objections were received. Many submissions highlighted the long history of opal mining in the area, and the economic and social significance of mining to the community. Several also noted the significant community hardship experienced during the period in which mining had been unable to proceed and emphasised the importance of the determination in providing certainty and ultimately restoring activity and stability.

Additionally, the United Nations Human Rights Committee (UNHRC) has previously considered situations in which the impact of commercial activities on the cultural rights of minorities was in question. The UNHRC has observed that commercial activity, including mining, occurring on land belonging to minorities may have only a limited impact on their ability to enjoy their culture,[3] and therefore may not be incompatible with Article 27 of the ICCPR.

To the extent that the Instrument may limit the right to enjoy and benefit from culture, based on the above, those limitations are reasonable, necessary and proportionate to achieving the Instrument’s legitimate objectives, which fundamentally accounts for interference with the right to enjoy and benefit from culture by ensuring robust consultation prior to its making.

The right to self-determination

The right to self-determination is contained in Article 1 of the ICCPR and Article 1 of the ICESCR. These articles both uphold the collective right to freely determine and maintain cultural, economic, social and political development. [4]

The Act, and its related instruments, give effect to the right to self-determination by providing mechanisms to recognise and protect native title rights and interests, and by providing native title holders with opportunities to manage, utilise and make decisions for their traditional lands.

While the making of an instrument for the purposes of subsection 26C(2) may limit the rights of native title holders to enjoy and benefit from culture in relation to the areas subject to such an instrument, where there is an agreement with the relevant native title holders, the right to self-determination is promoted.  

The making of a section 26C instrument has been formally agreed to by the relevant native title holders. The right to freely determine and maintain cultural, economic, social and political development is therefore upheld by the making of the Instrument.   

The fundamental objective of the instrument is to specify an area of land or waters for the purposes of subsection 26C(2) of the Act. The scope of the Instrument is narrow in that it applies only to small scale opal and gem mining in an area where opal or gem mining is already occurring.

In these circumstances the Instrument rationally pursues a legitimate objective in a manner that is reasonable, necessary and proportional.

Conclusion  

The Instrument is compatible with human rights because it promotes the right to self-determination and, to the extent that it may limit the right to enjoy and benefit from culture, those limitations are reasonable, necessary and proportionate to achieving the Instrument’s legitimate objectives. 

ATTACHMENT B

NOTES ON SECTIONS

Details of the Native Title (Approved Opal Or Gem Mining Area – White Cliffs Area New South Wales) Determination 2026

Part 1 - Preliminary

Section 1 – Name

This section provides that the title of the Determination is the Native Title (Approved Opal or Gem Mining Area – White Cliffs Area New South Wales Determination 2026)

Section 2 – Commencement

This section provides that the Regulations will commence on the day after the instrument is registered.

Section 3 – Authority

This section provides that the Determination is made under section 26C of the Native Title Act 1993.

Section 4 – Definitions

This section provides definitions of key terms under the Instrument.

Section 5 – Datum for ascertaining the position of the points

This section describes that the relevant datum is the Geocentric Datum of Australia 2020 and the coordinates in this instrument are expressed in eastings and northings of the Map Grid of Australia 2020 (MGA2020) Zone 53.

Section 6 - Deposited Plan

This section describes that a reference to a Deposited Plan is a reference to a Deposited Plan lodged under the relevant law of New South Wales as the Deposited Plan exists immediately before the commencement of this instrument.

Part 2 Approved opal or gem mining area

Section 7 – Approved opal or gem mining area

This section provides that the White Cliffs opal or gem mining area is an approved opal or gem mining area for the purposes of section 26C of the Act.

Section 8 White Cliffs approved mining area

This section describes the White Cliffs opal or gem mining area.  

[1] International Covenant on Civil and Political Rights article 27; International Covenant on Economic, Social and Cultural Rights article 15.

[2] Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth) 19.32.

[3] Lansman et al v Finland No. 2, (25 November 1996) CCPR/C/58/D/671/1995, para 10.7.

[4] International Covenant on Civil and Political Rights (New York, 16 December 1966) [1980] ATS 23 [REPRINT], UNTS 999 p.171 article 1; International Covenant on Economic, Social and Cultural Rights (New York, 16 December 1966) [1976] ATS 5, UNTS 993 p.3 article 1.