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4 Aug 15
NSW mining lease applications - New protocol for proof of extinguishment of native title

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WHO SHOULD READ THIS

  • Any person who is proposing to submit a mining title application (e.g. for a mining lease or assessment lease) in New South Wales.

THINGS YOU NEED TO KNOW

  • DRE has issued a revised native title extinguishment protocol which must be strictly complied with when submitting a mining title application.

WHAT YOU NEED TO DO

  • The native title extinguishment protocol should be addressed as early as possible when preparing an application for a new mining title.

In July 2015, the Department of Industry, Resources and Energy (DRE) released an updated ‘Protocol for Evidencing Proof of Extinguishment of Native Title’ (Protocol). The Protocol is designed to assist mining title applicants in identifying suitable and adequate documents which evidence that native title has been wholly extinguished over the land subject to the proposed mining title.

Updated Protocol
The updated Protocol is more detailed than the previous version and contains two additional documentary requirements that are necessary to assist DRE in determining whether native title has been extinguished over a particular area. These new requirements are:

  • the ‘applicant’s statement’ which must specify whether or not the Native Title Act 1993 (Cth) will apply to the mining title application area, and
  • the inclusion of a pro forma land tenure schedule which must be used by the applicant to summarise and present their findings regarding the extinguishment of native title in each land parcel, road or watercourse within the application area.

Proving extinguishment of native title
In summary, when making an application to DRE for a mining title, the application must include the following documentary evidence to support the applicant’s opinion that native title has been extinguished:

  • applicant’s statement – the applicant must provide a written statement stating whether or not native title has been extinguished over the application area.  The statement should be accompanied by legal advice regarding the extinguishment of native title.  Where applicable a copy of an Indigenous Land Use Agreement relating to the area should also be provided
  • land tenure schedule – the land schedule must be in the form contained in the Protocol, which includes information about each lot, the current tenure and reasons why native title has been extinguished
  • primary documentation – the information in the land tenure schedule must be supported by copies of relevant documents including parish maps, Crown grants and plans, and current and historical title searches
  • identification map – a map must be provided that shows the boundary of the application area as well as underlying land ownership boundaries, lot and plan numbers, and a scale and north facing arrow
  • National Native Title Tribunal report – applicants must provide a copy of a report prepared by the National Native Title Tribunal which discloses whether any part of the land within the application area has been previously subject to a native title claimant application or determination in the Federal Court, and
  • administrative matters – the Protocol also stipulates a number of administrative requirements relating to presentation of documents and timing for submission.

What does this mean for you?
Overall the Protocol is more detailed than the previous version and provides greater assistance to applicants in addressing DRE’s requirements for proving extinguishment of native title.   In our experience, DRE’s timing for processing a native title extinguishment report varies according to the size of the application area, but can take in excess of six months.  Strict compliance with the Protocol is necessary not only to satisfy DRE’s requirements, but also to avoid undue delay in the application process.  This new Protocol and DRE’s processing time should be factored into your company’s project timreframes.


Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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