2 April 2021
Welcome to Ashurst's annual review of native title legal developments.
We are thrilled to publish our Native Title Year in Review– now in its sixth year.
We have, as always, reflected on the legal developments in this dynamic area of law in what has been an incredibly challenging year for all of us. This time last year, the focus of Government and community efforts was to keep remote Indigenous communities virus-free. As vaccines now start to roll out, and with many of us frequently observing how COVID-19 so heavily impacted and slowed the last 12 months of our lives, 2020 still managed to deliver one of the most important years in native title law and Indigenous heritage policy in Australia.
Native Title Act amendments have recently passed through the Federal Parliament, fundamental heritage law reform has ramped up across many States – becoming a legislative priority driven by the tragic heritage impacts in the Pilbara and elsewhere – and numerous significant judgements have continued to provide critical direction in this area of law and its practical application.
In the native title arena, the last 12 months has seen:
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The Joint Standing Committee on Northern Australia's Never Again: Inquiry into the destruction of 46,000 year old caves at the Juukan Gorge in the Pilbara region of Western Australia – Interim Report, recommending that the Commonwealth play a far more significant role in ensuring and enforcing standards of heritage protection across Australia.
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The first mining province test cases for native title compensation, following the High Court's 2019 Timber Creek decision, brought by the Gumatj People in the Northern Territory and the Tjiwarl People in the Goldfields region of Western Australia.
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Some long awaited amendments to Native Title Act. Of course, the amendments are just few of the measures advocated in the various calls for reform from the last decade. Important issues, including a validation fix arising from the Forrest & Forrest mining lease invalidity case in Western Australia, still require the attention of governments.
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No progress on Constitutional recognition following the 2017 Uluru Statement from the Heart, however progress towards a national Indigenous Voice to provide advice to the Australian Parliament is encouraging. As a firm, we support constitutional recognition.
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Ongoing Corporations (Aboriginal and Torres Strait Islander) Act reform being undertaking by the National Indigenous Australians Agency, looking to further improve the functions and operation of the growing number of native title body corporates across the country.
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The High Court of Australia refusing FMG's application for special leave to appeal the Yindjibarndi's exclusive determination of native title, upholding the judgement at first instance and paving the way for what we expect will be a considerable compensation application in respect of FMG's Solomon Hub operations.
Our national Ashurst team has remained at the forefront of these developments. Over the course of the year, our highlights have included:
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being recognised as Band 1 in Native Title (Proponents) in Chambers Asia-Pacific, a ranking which we have maintained since 2007. We could not have achieved this recognition without the opportunities and trust our clients place in us;
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having the pleasure of advising the National Indigenous Australians Agency on proposed reforms to the Corporations (Aboriginal and Torres Strait Islander) Act, following the Minister for Indigenous Australians, the Hon Ken Wyatt, announcing a comprehensive review in 2019; and
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assisting clients to navigate the gap between current laws and community standards in relation to Indigenous heritage, exposed this year and explored in three recent reports in relation to the Juukan Gorge incident, the EPBC Act Review and the Productivity Commission Report on resource sector regulation.
With ongoing focus on State and Commonwealth law reform across native title, Indigenous heritage and environmental matters, 2021 is expected to be yet another busy year for legal developments in this space. We look forward to being able to work through these issues together with our proponent, government and Indigenous clients, across the table and in person (and not entirely over video conference!).
We encourage you to reach out to us if you would like to discuss any aspect of this publication.
In the meantime, our best wishes for the year ahead.
Click on the image to enlarge
For further information, please contact:
Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com
