Legal development

Native Title Year in Review 2022-2023

Dry grass on sandy dunes landscape

    Welcome to Ashurst's annual review of native title legal developments.

    We are once again delighted to publish our eighth annual Native Title Year in Review.

    As we drafted our review this year, it became apparent that developments in the non-native title space now make up half our publication.  With ESG matters on the priority list across politics, policy and in boardrooms, the momentum for change is significant and gathering steam.  Reform across heritage laws, calls for Treaty, FPIC, Constitutional recognition and of course the Voice, are frequent features in the public narrative.

     No new Federal cultural heritage legislation in 2023
     1 July 2023 - WA's new Aboriginal heritage laws have commenced
     Federal focus on the Voice to Parliament, while Treaty and Voice progress continues in the States and Territories
     FPIC's reach expands beyond native title and cultural heritage 
     First Nations underwater cultural heritage on the reform agenda
     Joining the national movement - South Australia begins process for cultural heritage law reform
     Tasmania continues to progress towards new Aboriginal cultural heritage protection legislation
     Refusing mining approvals on human rights grounds
     Full Court Tipakalippa decision – stakeholder consultation grows teeth
     Traditional Owners continue to rely on ATSIHP Act in face of slow progress with national cultural heritage reforms
     Full Court makes landmark decision about pre-1975 acts in Gumatj compensation claim 
     Native title compensation: we're off to the High Court again!
     Section 47C of the Native Title Act gets first determination – with more on the way 
     Recent decision highlights confusion around native title expert evidence 
     Small scale miners struggle to satisfy good faith standard in the right to negotiate process
     Santos wins strongly in the National Native Title Tribunal, but Full Federal Court will hear Gomeroi appeal
     When conduct becomes costly – the risk of unreasonable behaviour in native title proceedings  
     New South Wales begins implementing Aboriginal Land Rights Act reform
     Essential public purpose: NSW courts raise the bar for the Minister to refuse claims under the Aboriginal Land Rights Act 
     Transparency for Adnyamathanha people over trust’s use of native title monies
     Native title appeal decisions to watch out for in 2023-2024


    Our national Ashurst team has remained at the forefront of these developments. Over the last 12 months, our highlights have included: 

    • 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; and
    • continuing to assist clients to navigate the gap between current laws and community expectations in relation to Indigenous cultural heritage and FPIC.

    The next twelve months will bring some important native title appeal decisions and further developments across cultural heritage, FPIC, Treaty and Voice. 

    We look forward to working with our commercial, government and First Nations clients to find practical and respectful ways to address native title and cultural heritage matters on projects around Australia.

    The articles in this 2022-2023 publication are current as at 30 June 2023.  

    We encourage you to contact us if you would like to discuss any aspect of this publication.

    Fast Facts Infographic for Native Title Year in Review 2022

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    Download bite size PDF (what you need to know) 

    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.