Native Title Year in Review 2023-2024

What you need to know

• The free prior and informed standard for agreement making (or FPIC) continues to be an influential concept in the development of legislation, guidelines and the expectations of Traditional Owners. 
• At the moment the law lags behind the expectations, but the trend is clear. 
• In the current climate, it is difficult to imagine Parliament moving forward with legislation in this space that does not move closer to the FPIC standard.

What you need to do

• As a proponent, be aware of the difficulty in getting a major project approved without the support of Traditional Owners, irrespective of whether there is a legal requirement to do so.  
• As a Traditional Owner, be aware that not every project can support significant benefit sharing models. It depends on project financials, which need to be assessed on a case-by-case basis, as well as the nature of the contribution you are able to provide.
• So, use the opportunity to get creative in discussions about working together.

Free, Prior and Informed Consent

In previous years we have reported on how the "free, prior and informed consent" standard has been implemented in the native title landscape. This year, we have seen that FPIC continues to be an influential concept in the development of legislation, guidelines and the expectations of Traditional Owners. 

We summarise developments of note during the last 12 months below.

Inquiry into application of United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Australia

In November 2023, the Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs handed down its Final Report from The Inquiry into the application of the United Nations Declaration on the Rights of Indigenous Peoples in Australia. The Committee recommended that governments ensure their approach to developing policy and legislation affecting Aboriginal and Torres Strait Islander peoples be consistent with UNDRIP. It suggests mechanisms such as incorporating UNDRIP in Australia’s human rights scrutiny legislation and a national action plan developed in consultation with First Peoples to guide coordinated efforts for implementing UNDRIP holistically in Australia. Further, the Committee recommended that the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) be amended to include UNDRIP in the definition of ‘human rights’, so that it is formally considered by the Parliamentary Joint Committee on Human Rights when scrutinising legislation. However, the Committee stopped short of recommending that UNDRIP be legislated in full in Australia. 

Dhawura Ngilan Business and Investor Initiative

In March 2024, the Dhawura Ngilan Business and Investor Initiative published the Principles for Businesses and Investors and A Guide for Businesses and Investors which describe principles of engagement with Traditional Owners that are influenced by the concept of FPIC. 

The guide provides that investors have an opportunity to drive industry observance of and respect for FPIC. It also challenges companies to measure themselves by how holistically they apply FPIC in cultural heritage matters. The Guide includes a helpful list of what FPIC can look like in practice and importantly, clarifies that consent includes allowing Traditional Owners to withhold consent. See our Native Title Year in Review 2023-2024 article "Little movement on Federal cultural heritage reform in 2023 – but stakeholders and industry are instigating change" for more.  

Full Federal Court decision in Gomeroi People v Santos

In March 2024, the Full Federal Court handed down its decision in Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26. This case discussed the policy position of the Government that effective veto in relation to the doing of future acts sits with the Tribunal, not the native title party. 

As part of this discussion, the Chief Justice referred specifically to criticisms of the Native Title Act 1993 (Cth) made by the Joint Standing Committee on Northern Australia in A Way Forward: Final Report into the Destruction of Indigenous Heritage Sites at Juukan Gorge released in October 2021. These criticisms stemmed from the Report's recommendations to amend the Native Title Act. Specifically, to address inequalities in the negotiation position of Traditional Owners in the context of the future act regime as well as develop standards for negotiation of agreements that require proponents to adhere to the principle of FPIC as set out in the UNDRIP. These reforms have not been actioned to date, but could be part of reform foreshadowed in the recent Federal budget, as explained below.

Federal Budget includes allocation for Native Title Act reform

The 2024-2025 Federal Budget allocates $500,000 to the Australian Law Reform Commission to review the future acts regime within the Native Title Act. This referral has not yet been made but is likely to consider the application of FPIC.

Offshore infrastructure legislation 

Offshore infrastructure legislation introduced in 2022 has been criticised for failing to require the consent of Traditional Owners in offshore infrastructure projects like offshore wind farms. At the end of April 2024, the Government released a consultation draft of the Offshore Electricity Infrastructure Amendment Regulations 2024 (Cth). The draft regulations will require proponents to consult with Traditional Owners that have native title rights and interests or "sea country" in the licence area. This language no doubt directly reflects recent case law developments in respect of offshore projects, such as Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193 and Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158. 

The draft regulations also reflects the broader trend of FPIC influencing expectations in new legislation.  Watch out for our Native Title Year in Review 2023-2024 article "Further litigation of First Nations consultation rights for offshore projects in the wake of Tipakalippa" for more about these decisions.  

Victorian Government's evidence at the Yoorrook Justice Commission mentions wealth sharing and informed consent

The Victorian Minister for Energy, Lily D'Ambrosio, gave a statement at a public hearing held by the Yoorrook Justice Commission in Victoria on 22 April 2024. The hearing is a formal truth telling process about the injustices against First Peoples related to land, sky and waters. 

Minister D'Ambrosio's statement indicated the Victorian Government's intention to introduce into law some form of wealth sharing mechanism with Traditional Owners from resources and renewable energy projects. During her evidence, Minister D'Ambrosio made it clear that the approach to addressing wrongs of the past was not just about wealth sharing but it was about:

Informed consent …and the principles that are certainly embedded in the United Nations Declaration for Indigenous Peoples. So that is something that is guiding my approach, the Department's approach and Government. 

It will be important for Victorian proponents to consider how these future legislative mechanisms may need to be reflected in any agreements with Traditional Owners. 

Key insights

Irrespective of a lagging legal framework, it is now difficult for proponents to get major projects approved without the support of Traditional Owners.  

FPIC is a concept whose time has come, but statements regarding "best practice" overlook the on-ground complexities of correctly identifying the Traditional Owners for country and incorporating traditional decision-making processes.  

The mammoth task of new builds required for the energy transition will give all involved the opportunity to embed and test the limits of the FPIC standard in Australia.

Want to know more?

• Little movement on Federal cultural heritage reform in 2023 – but stakeholders and industry are instigating change, 24 May 2024
• Outlines developments relating to FPIC promoted by First Nations and industry bodies in 2023-2024
• FPIC's reach expands beyond native title and cultural heritage, 25 July 2023
• Outlines developments relating to FPIC in 2022-2023
• A big year for FPIC – an increasing global focus on the need to secure free, prior and informed consent, 11 July 2022
• Outlines developments relating to FPIC in 2021-2022

Authors: Sophie Westland, Senior Associate; Clare Lawrence, Partner.