A recent decision of the Federal Court in Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia (No 2) [2026] FCA 585 (Yindjibarndi) has confirmed the validity of Western Australia’s “pass through” provision in s 125A of the Mining Act 1978 (WA) (Mining Act). The decision provides important guidance on who is responsible for paying native title compensation when a mining tenement is granted.
What is the pass through provision?
The Native Title Act 1993 (Cth) (NTA) establishes when compensation is payable for acts affecting native title.[1] It also recognises that State and Territory laws may allocate liability for compensation to a person other than the Crown for certain future acts.[2]
In Western Australia, that allocation is made by s 125A of the Mining Act. Commonly referred to as the “pass through” provision, s 125A passes liability for native title compensation from the State to the applicant for or holder of the mining tenement.
The provision reflects a legislative policy that the financial responsibility for native title compensation should rest with the party that benefits from the grant of the mining tenement, rather than the State.
The challenge to s 125A and the Federal Court’s response
In Yindjibarndi, Fortescue mounted a constitutional challenge to s 125A of the Mining Act. It argued that the NTA established a comprehensive Commonwealth scheme governing liability for native title compensation, leaving no room for State legislation to transfer that liability to mining tenement holders.
The Federal Court rejected that argument. It held that the NTA expressly contemplates State and Territory laws allocating liability for compensation to a person other than the Crown. Section 125A therefore operates consistently with the Commonwealth scheme by determining who is liable to pay compensation, rather than altering the entitlement to compensation itself. Accordingly, Western Australia’s passthrough provision remains effective.
[1] Native Title Act 1993 (Cth) Division 5.
[2] Native Title Act 1993 (Cth), s 24MD(4)(b)(i).
How does Western Australia compare with other jurisdictions?
Western Australia is not the only jurisdiction to adopt this approach.
In New South Wales, s 281B of the Mining Act 1992 (NSW) and s 112A of the Petroleum (Onshore) Act 1991 (NSW) similarly provide that the holder of the relevant mining or petroleum authority is liable to pay compensation payable under the NTA.
Other jurisdictions, including Victoria, also provide for compensation in some circumstances, although they achieve this through different legislative mechanisms rather than provisions directly equivalent to s 125A.
Why does the Yindjibarndi decision matter?
By confirming that s 125A operates consistently with the NTA, the Federal Court’s decision provides greater certainty and important guidance for those involved in native title and resource projects, including:
- Traditional Owners, PBCs and RNTBCs, by confirming the statutory framework through which compensation may be pursued where mining tenements affect native title;
- Proponents, by reinforcing the importance of considering potential native title compensation liability during due diligence, project planning and commercial negotiations; and
- Government and decision-makers, by confirming the continued operation of Western Australia’s legislative framework for allocating compensation liability.
How Marrawah Law can help
Native title compensation sits at the intersection of the NTA and State mining legislation. Marrawah Law advises Traditional Owners, First Nations organisations, PBCs, proponents, corporate clients and government on native title, future acts, compensation, agreement-making and governance.
If you would like to discuss how native title compensation may affect your project or organisation, our team would be pleased to assist.
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