Commonwealth of Australia
Native Title Act 1993
Native Title (Right to Negotiate (Exclusion) — NSW Land) Determination No. 1 of 1996
I, john joseph herron, Minister for Aboriginal and Torres Strait Islander Affairs, being satisfied of the matters referred to in subsection 26 (4) of the Native Title Act 1993, make the following Determination under paragraph 26 (3) (b) of that Act.
Dated 6 November 1996.
JOHN HERRON
Minister for Aboriginal and Torres Strait Islander Affairs
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Citation
1. This Determination may be cited as the Native Title (Right to Negotiate (Exclusion)—NSW Land) Determination No. 1 of 1996.
Commencement
2. This Determination commences on 6 November 1996.
Interpretation
3. In this Determination:
“the Act” means the Native Title Act 1993.
Acts excluded from right to negotiate provisions
4. (1) For the purposes of paragraph 26 (3) (b) of the Act, each of the acts in subclause (2) is an act excluded from the coverage of subsection 26 (2) of the Act if the licence or authority, as the case requires, includes, or is subject to, a condition to the effect that the holder must not prospect on, or in relation to, any onshore place covered by that licence or authority in relation to which native title exists without the prior written consent of the New South Wales Minister for Mineral Resources.
(2) For the purposes of subclause (1), the acts are:
(a) the grant of an exploration licence under section 22 of the Mining Act 1992 (New South Wales);
(b) the renewal of an exploration licence under section 114 of the Mining Act 1992 (New South Wales);
(c) the grant of an exploration licence under section 9 of the Petroleum (Onshore) Act 1991 (New South Wales);
(d) the renewal of an exploration licence under section 19 of the Petroleum (Onshore) Act 1991 (New South Wales);
(e) the grant of a special prospecting authority under section 9 of the Petroleum (Onshore) Act 1991 (New South Wales);
(f) the renewal of a special prospecting authority under section 19 of the Petroleum (Onshore) Act 1991 (New South Wales).
[NOTE: Under clause 4 of the Native Title (Right to Negotiate (Inclusion)—NSW Land) Approval No. 1 of 1996, the giving of prior written consent of the New South Wales Minister for Mineral Resources for the holder of a licence or authority referred to in clause 4 of this Determination to prospect on, or in relation to, any onshore place covered by that licence or authority in relation to which native title exists, is an act for the purposes of paragraph 26 (2) (e) of the Act.]
Overview
The Native Title (Right to Negotiate (Exclusion)—NSW Land) Determination No. 1 of 1996 was enacted to provide a legislative framework under the Native Title Act 1993 for the exclusion of certain mining and petroleum activities from the right to negotiate provisions concerning native title claims over onshore areas in New South Wales. This legislative instrument was made by John Joseph Herron, the Minister for Aboriginal and Torres Strait Islander Affairs, on 6 November 1996. The policy objective of this Determination is to ensure that holders of exploration licenses and prospecting authorities must obtain prior written consent from the New South Wales Minister for Mineral Resources before prospecting on land where native title is recognised, thereby balancing the rights of native title holders with the interests of mining and petroleum industries.
Scope and Application
The Native Title (Right to Negotiate (Exclusion)—NSW Land) Determination No. 1 of 1996 applies to specific acts related to the exploration and prospecting for minerals and petroleum on lands in New South Wales where native title exists. This Determination operates under the authority of the Native Title Act 1993, with the objective of specifying certain acts that are excluded from the right to negotiate provisions when the licences or authorities for prospecting or exploration include a condition requiring prior written consent from the New South Wales Minister for Mineral Resources. The excluded acts include the grant or renewal of exploration licences under the Mining Act 1992 and the Petroleum (Onshore) Act 1991, as well as the grant or renewal of special prospecting authorities under the latter Act. This Determination is jurisdictional in nature, applying specifically to the onshore areas of New South Wales, and it does not extend to other states or territories in Australia. This legislative instrument is designed to balance the rights of native title holders with the interests of those seeking to explore or prospect for minerals and petroleum.
Key Provisions
The Native Title (Right to Negotiate (Exclusion) — NSW Land) Determination No. 1 of 1996, made under the Native Title Act 1993, specifies certain acts that are excluded from the right to negotiate provisions when a licence or authority is subject to particular conditions. Under section 4(1), the acts excluded from the right to negotiate provisions include the grant or renewal of exploration licences and special prospecting authorities under the Mining Act 1992 and the Petroleum (Onshore) Act 1991 in New South Wales, provided these licences or authorities include a condition that the holder must not prospect on any onshore place covered by the licence or authority in relation to which native title exists without prior written consent from the New South Wales Minister for Mineral Resources. These acts are listed in section 4(2) and include the grant and renewal of exploration licences and special prospecting authorities under both the Mining Act 1992 and the Petroleum (Onshore) Act 1991.
The Determination imposes obligations on licence and authority holders to ensure that any prospecting activities in relation to areas covered by their licences or authorities and where native title exists, must not be carried out without the prior written consent of the New South Wales Minister for Mineral Resources. This requirement is designed to ensure that any such activities are conducted in a manner that respects and does not infringe upon the native title rights of the relevant Aboriginal or Torres Strait Islander groups.
Breaches of the conditions specified in this Determination can lead to serious consequences. The Act provides that the holder of a licence or authority who fails to comply with the conditions may be subject to administrative or legal actions. In cases of non-compliance, the Minister may revoke the licence or authority, and the holder may face civil or criminal penalties. While the specific penalties are not detailed in this Determination, the overarching legislation, the Native Title Act 1993, provides for penalties that can include fines and imprisonment, reflecting the seriousness of failing to adhere to the conditions set out to protect native title rights.