Native Title Year in Review 2023-2024

What you need to know

• Reform to Federal cultural heritage protection laws has been on the agenda since the Samuel Review into the EPBC Act began in 2019, but there is not a lot of publicly discernible action.
• Meanwhile, First Nations and industry bodies are taking the lead on standard setting. In March 2024, the First Nations Heritage Protection Alliance launched the Dhawura Ngilan business and investor initiative. The initiative comprises Aboriginal heritage protection principles alongside a Guide for Business and Investors. Other similar publications have been released in the context of First Nations involvement in clean energy projects (Clean Energy Council's Leading Practice Principles: First Nations and Renewable Energy Projects).
• As you might expect, across these publications, there is a focus on FPIC (free, prior and informed consent), early engagement and respect for human rights.

What you need to do 

• If you are operating in this space, get familiar with the Guide. It is ambitious and probably unrealistic, but a good articulation of best practice. 
• Interestingly, the Guide seeks to use the structure of the financial system to influence corporate behaviour and social outcomes. It asks investors (including superannuation funds and fund managers) to monitor businesses' implementation of the Principles and human rights issues generally and hold them to account. It advocates for the integration of cultural heritage considerations into decision-making during due diligence, assessing disclosures, corporate engagement, stewardship and whether to buy, hold or sell an asset.
• Be aware that change will come to Federal heritage laws. When it does, it will be closer to the expectations expressed in these recent publications than the current legal framework.

How did we get here – what happened to legislative reform?

The First Nations Heritage Protection Alliance started out as a collaborator with the Federal Government on legislative reform. This work led to the publication of a number of papers in 2022 (Discussion Paper that will guide consultations as part of the national engagement process, Directions Report – First Nations Cultural Heritage Reform, and Options Paper: First Nations cultural heritage protection reform).

The Options Paper set out three options for reform, including standalone Federal legislation, Federal accreditation of State/Territory legislation and model legislation to be adopted by States and Territories. We wrote about these developments in our Native Title Year in Review 2022-2023 article "No new Federal cultural heritage legislation in 2023 – but change is coming". 

Further engagement and reports were planned for 2023 with a view to introducing new legislation in early 2024. None of this has happened. Perhaps the Government was keen to separate itself from developments in Western Australia (see our Native Title Year in Review 2023-2024 article "WA Aboriginal heritage laws restored with key changes". It moved away from the option that would involve standalone Federal legislation. In the October 2023 Senate Estimates hearings, the Department of Climate Change, Energy, the Environment (DCCEEW) stated that "states and territories have primary responsibility around cultural heritage legislation", and reiterated the Minister's position that any Federal reform "would not override state or territory legislation".

When pressed on the timing of further reforms, the DCCEEW's representative confirmed that they would not be rushed and will take time to consult widely to get the reform right. When pressed about whether there would be legislation before the next election, a representative said:

It's unclear. … the government is committed to making sure that they get it right. It has been a slow process. It's a tricky reform. We are working through the detail very carefully with the cultural heritage alliance. When we feel that we are ready to go to a broader consultation process, … we'll go to peaks and to industry. We've got to engage with the states quite extensively. The government is very committed to the reform, but we don't yet have a time frame. (page 101 Senate Estimates hearings).

The 2024-2025 Federal budget's Future Made in Australia – Strengthening Approvals Processes section includes $17.7 million to reduce the backlog and support administration of complex applications under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and progress the reform of Australia’s cultural heritage laws.

No progress for First Nations underwater cultural heritage law reform

In March 2023, the Federal Government released draft guidelines outlining proponent requirements to protect underwater cultural heritage under the Underwater Cultural Heritage Act 2018 (Cth) (UCH Act). The draft guidelines go further than current legislative requirements, signalling future legislative reform. We wrote about this in our Native Title Year in Review 2022-2023 article "First Nations underwater cultural heritage – no longer a submerged issue".

Despite the Department indicating that finalised guidelines would be released in late 2023, progress has stalled. We will write about this further in another Native Title Year in Review 2023-2024 article shortly. 

Dhawura Ngilan business and investor initiative 

In the meantime, the First Nations Heritage Protection Alliance has sought to set the agenda. In March 2024, they launched the Dhawura Ngilan business and investor initiative. The initiative comprises 20 Aboriginal heritage protection principles alongside a Guide for Business and Investors about how the principles should be implemented.  

The Initiative has been endorsed by Responsible Investment Association Australasia, BHP, Lendlease, HESTA and others.

The Principles and Guide both assert that current Australian legislative frameworks do not adequately protect First Nations cultural heritage and are not in line with international legal standards. They state that the Principles and Guide present an opportunity for the private sector to go beyond legislative standards and actively contribute to the Dhawura Ngilan (Remembering Country): A Vision for Aboriginal and Torres Strait Islander heritage in Australia.

Much of the content reflects the outputs of Parliamentary inquiries into the Juukan Gorge incident in May 2020. There is a focus on FPIC (free, prior and informed consent), human rights and international instruments/guidelines.  

Key things to note: 

• The Guide asks investors (including superannuation funds and fund managers) to monitor businesses' implementation of the Principles and Guide and human rights issues generally and hold them to account. 
• It wants investors to influence corporate behaviour and social outcomes by integrating cultural heritage considerations into decision-making during due diligence, assessing disclosures, corporate engagement, stewardship and whether to buy, hold or sell an asset.
• The Principles and Guide entrench "FPIC" and the right to say no.
• The Guide contains detailed lists of what businesses and investors should be doing in relation to each of the principles, set out as a checklist. They are very specific.
• There is no real acknowledgment of the issues of standing (it suggests anyone who wishes to be consulted should be involved) or intra-Indigenous conflict in relation to cultural heritage management.
• There is much detail about First Nations prosperity and benefit sharing, but little acknowledgment of the difference between benefits flowing to businesses by the commercialisation of First Nations ideas and the management/protection of cultural heritage before land/sea-based projects are carried out.

Other non-legislative developments in the clean energy space

In November 2023, DCCEEW released the First Nations Clean Energy Strategy Consultation Paper, and indicated that a draft strategy will follow in 2024. 

In February 2024, the Clean Energy Council (co-authored with KMPG) released Leading Practice Principles: First Nations and Renewable Energy Projects. 

We expect aspects of these publications will be used by First Nations organisations, NGOs, and presumably some investor organisations as a benchmark for corporate conduct. They will inevitably influence the Commonwealth heritage reform process, though their scope extends beyond heritage protection discussion.

Key insights

The slow pace of reform, coupled with the demands of energy transition projects, has led to non-government players filling the gap with their own view of best practice. 

Although there are commonalities among all these publications (in terms of complying with FPIC, international standards etc), the guidance is inconsistent between publications and have no legislative force.

There is some confusion. The many International companies attracted to Australia by the apparent demand for large scale renewable energy projects, are finding the lack of certainty challenging. Even those proponents familiar with the Australian environment feel as if they are facing changing and divergent expectations.  

The sooner the Federal Government progresses legislative measures the better — for all concerned. Unfortunately, time is running out for the Federal Government to introduce cultural heritage reform legislation during the current term (i.e. by May 2025). 

Want to know more?

• WA Aboriginal heritage laws restored with key changes, 23 May 2024 — Outlines the current state of WA's cultural heritage laws after the repeal of the 2021 reforms
• No new Federal cultural heritage legislation in 2023 – but change is coming, 25 July 2023 — Covers the Government's response to the Way Forward Report and various publications released in 2022
• First Nations underwater cultural heritage – no longer a submerged issue, 25 July 2023 — Covers draft guidelines outlining proponent requirements to protect underwater cultural heritage under the Underwater Cultural Heritage Act 2018 (Cth)
• Federal Government responds to Way Forward Report, 25 November 2022 — Covers the implications of the Way Forward Report and Never Again Report 
• Modernisation of cultural heritage protection legislation begins, 11 July 2022 — Covers the Way Forward Report

Authors: Leonie Flynn, Expertise Counsel; Clare Lawrence, Partner; Lydia O'Neill, Graduate.