AUSTRALIA: An Introduction to Native Title: Traditional Owners

The following overview featured in Chambers Asia-Pacific 2024 and is awaiting update from the firm.

Introduction 

Australia is navigating major economic and policy challenges, from climate change and energy instability to housing affordability. Solving these challenges will require land, and access across land, for clean energy and critical minerals projects, housing and biodiversity protection. Given the extent and nature of their land holdings and knowledge of country, Indigenous communities will play a critical role in addressing many of these challenges.

At the same time, the legal spotlight will continue to shine on cultural heritage law reform and emerging case law in native title compensation.

Clean Energy and Critical Minerals  

Australia is undergoing a clean energy transition and the coming decade will be critical in shaping standards for industry engagement with Indigenous communities. The central issue remains consistent – that Indigenous people are tangibly involved in the planning, development and maintenance of new energy sources.

Indigenous communities are aiming to be proactive in decisions relating to their land interests rather than reactive to third-party proposals. This approach will benefit industry and government as well, but is dependent on funding and appropriate advice being available to enable communities to make informed decisions about how clean energy fits into their land-use planning.

The Federal Government and all states and territories have agreed to develop a First Nations Clean Energy Strategy with the help of the First Nations Clean Energy Network (FNCEN). Roundtables are being held nationwide to seek input from Indigenous communities. A unified policy framework would be welcome.

The FNCEN has developed best practice negotiation guidelines which are essential reading for proponents. A benchmark is equity stakes for traditional owner groups and these have been announced on some major energy projects. Proponents committed to best practice should also explore co-design in recognition of the insight that traditional owners can bring to land issues that exceed what is in environmental regulations. For projects requiring significant land, consideration needs to be given to ensuring traditional connections to country are maintained.

There is also a strong push to grow the critical minerals sector, with the Federal Government announcing a major funding boost in October 2023. The scale of production required to meet the demand for lithium, cobalt, graphite, manganese and other minerals used in energy storage has been rapidly increasing for many years. Exploration and mining proponents should engage traditional owners at the early stages of a project given Native Title Act and cultural heritage law requirements, along with social licence expectations.

On a smaller scale, microgrids will provide energy resilience for many remote Indigenous communities. This is relevant to native title as improved energy reliability will support traditional owners to return to country. Innovative Indigenous-led projects are well under way, although the regulatory framework around standalone power systems continues to be a challenge.

Housing and Development  

By area, Indigenous groups are collectively the largest private landowners in eastern NSW, including substantial landholdings in the burgeoning Six Cities Region, with groups in other states and territories also holding substantial land assets. While the protection of country and community remain paramount, the need to use land to provide housing, health, education and wealth looms large for these communities. Many groups have begun to explore their own small- to large-scale land developments, and it seems likely that Indigenous landowners will play an increasingly important role in tackling Australia’s housing crisis in the next decade.

Environmental Markets and Management 

Environmental markets, such as carbon and biodiversity markets, attempt to mitigate environmental harm through pricing that harm, attributing credit values to it and then facilitating trading in those credits. One example is NSW’s Biodiversity Conservation Act 2016 which a recent independent statutory review noted “is not meeting its primary purpose of maintaining a healthy, productive and resilient environment, and is never likely to do so.” This year, the Federal Government released the Nature Repair Market Bill for comment, to develop a national biodiversity market. Whether the Federal approach overcomes the issues experienced in the NSW market remains to be seen.

The effectiveness of these markets will have a unique impact on Indigenous communities. Many Indigenous communities have rights or ownership over, or a legal claim to, much of the land and waters that governments, developers and conservationists are looking to use for conservation and environmental offsets. At least 51% of Australia’s landmass has some form of Indigenous right recognised in it. This land is typically remote or on the urban fringe and is often the only land left with high ecological values in the region. However, decisions about how to use the land are not always straightforward. While some Indigenous groups want to conserve their land, others want to use it to facilitate housing and economic development for their people. As Indigenous groups have an interest in much of the land with high ecological values, these differences are likely to set the scene for the politics of environmental markets in coming years.

The independent reviews of the NSW and Federal biodiversity legislation also raised questions about how Indigenous knowledge of environmental management can be incorporated into policy and practice. Traditional owners’ understanding of country is increasingly being recognised as critical to managing bushfire risks, but there is considerably more environmental knowledge that traditional owners can bring. At a project level, proponents should recognise that caring for country is intrinsically connected to culture and questions around environmental management and respect for Indigenous knowledge of land are likely to be ongoing themes in cultural heritage and future act discussions.  

Cultural Heritage  

In response to the destruction at Juukan Gorge, the Joint Standing Committee on Northern Australia in its second report, released in 2021 (JSC Report), recommended a major overhaul of national cultural heritage laws. Since then, two large reform efforts have been under way, namely:

• the First Nations cultural heritage law reforms which form part of the Federal response to the JSC Report; and
• Western Australia’s ill-fated attempt to update its 1972 Aboriginal Heritage Act with the 2021 Aboriginal Cultural Heritage Act.

The 2022 Federal Australian Government response to the JSC Report included a promise to reform the law to create standalone First Nations cultural heritage legislation through a co-design process. Initial engagement happened in early 2022. The overwhelming message from this stage was that reform is urgently needed. The second stage of engagement has been ongoing throughout 2023. No end date has been publicly announced and the timelines for consultation have been extended. There will then be a second options paper and ultimately an Options Report, with hopes that legislation may be introduced in 2024.

Western Australia has been the only Australian jurisdiction to implement new cultural heritage laws since the destruction at Juukan Gorge. However, this reform was short lived with the WA Government withdrawing its own legislation – the Aboriginal Cultural Heritage Act 2021 – in response to concerted public and stakeholder criticism. The complexity of the law and how much of the practical detail of its operation was released very close to the commencement date as guidelines, rather than forming part of the act as passed, were particular complications. The result, from the perspective of anyone who wants effective heritage protection on terms that respect human rights, is the worst of both worlds. A desperate need for reform but no political appetite, because of how bruising this experience has been.

Native Title Compensation  

Since the High Court first considered the principles relating to an award of compensation under the Commonwealth Native Title Act in 2019, there has been increased interest across Australia in the making of native title compensation claims. There are currently ten active native title compensation claims in the Federal Court – most of which relate to mining acts and all involve a range of issues and challenges for claimants. One of these claims (WAD37/2022: Yindjibarndi v State of Western Australia & Ors) has been identified by the court as being of public interest and an open online court file is available. The opening submissions of the parties have been filed, and earlier this year evidence was heard on Yindjibarndi country before Justice Burley.

Current and historic cases have resolved some of the issues regarding awards of native title compensation. However, procedural matters regarding how claims can or should be made are still being determined by the courts. Broader questions of determining liability and quantum for mining acts across Australia are also yet to be resolved, and represent some of the complex challenges Indigenous groups face in successfully prosecuting their claims – some of these questions may be answered by the Yindjibarndi proceeding.

Looking Ahead 

The next few years will be important in defining how Indigenous communities engage with governments, corporations and the courts to activate the economic potential of their land, as well as to protect areas of particular significance. With questions still to be answered, and changes to the regulation of Australian land use and cultural heritage protection expected, a commitment to supporting Indigenous people to enforce their rights and achieve outcomes of best practice for their communities remains vital.