In one of the most controversial periods in Australian politics in the late 1990s, the government sought to extinguish large elements of the native title which was effectively granted by the common law decisions of the High Court in relation to this issue in the early 1990s. As originally enacted, the native title act did not deal with extinguishment other than to send out the consequences of validating potentially invalid legislation agreements. The operation of these provisions was confined to legislation and grants occurring after the enactment of the racial discrimination legislation. The extinguishing effect of the laws and grants made before then was determined by the common law rules. These rules were largely outlined in the early case law. However, the decision in the Wik case led to an amendment of the act to confirm the extinguishing effect of certain laws and grants, regardless of the time in which took effect.
The native title act confirms the effect on native title of certain past acts. Under section 23C, previous exclusive possession acts have extinguish native title. Section 23B defines previous exclusive possession acts as valid acts made on or before 23 December 1996 being the date of the High Court’s decision in relation to Wik. Such as grants of Freehold, public works in certain leases and other grants conferring rights of exclusive possession. Grants conferring exclusive possession made under the legislation had also been extinguished by this new native title legislation. The legislation also invited states and territories to legislate in similar terms. At the time, this was an enormously controversial piece of legislation because of the effect it had on the rights of indigenous people in Australia in relation to this type of title. However, the legislation has never been repealed and it represents the state of the law in Australia today.