Native Title

P&E Law has provided a submission to the Australian Law Reform Commission’s Review of the Future Acts Regime (Discussion Paper 88), drawing on decades of experience representing Aboriginal and Torres Strait Islander clients in future act negotiations. Our submission supports the ALRC’s call for reform, highlighting that the current regime under the Native Title Act 1993 is no longer fit for purpose. Key themes include: (more…)

This edition of our Native Title Newsletter covers a number of topical native title issues. The inquiry into the Futures Acts regime; the streamlining of Native Title Regulations; helping to build sustainable PBCs; and key considerations for native title holders in negotiating land use agreements for renewable energy projects. Plus, we share highlights from Gulf Connect 2024. Stay informed and empowered.

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Native title compensation has become a popular talking point over the last three years with many of our clients interested in learning more about what to do and consider if lodging a compensation claim. This article provides some guidance and considers two compensation claims that were recently struck out:

Saunders on behalf of the Bigambul People v State of Queensland (No 2) [2021]…

A recent decision in NSW highlighted the importance of undertaking a proper assessment of Aboriginal cultural heritage in order to obtain development approval for a project. In Darkinjung Local Aboriginal Council & Ors v Minister for Planning & Infrastructure Anor [2015] NSWLEC 1465 the NSW Land and Environment Court refused the extension of an existing sand quarry near Gosford.  The proposal included the excavation of a 30m deep, 500m wide disturbance area. A number of significant sites were identified by Darkinjung Local Aboriginal Land Council (Darkinjung).  These sites were: a rock engraving…

The United Nations Declaration on the rights of Indigenous peoples includes in Article 19 a fairly narrowly focused requirement for States to obtain free, prior and informed consent before adopting measures that may affect Indigenous peoples. The concept of free (with no coercion, intimidation or manipulation), prior (with the consent to be sought long enough before any activities are to take place to allow time for indigenous consultation and decision-making) and informed (including all necessary information such as the nature, size, term, environmental impacts including positive and negative consequences of them) consent is one that can be tailored by Aboriginal and Torres Strait Islander groups to ensure that there is effective decision-making on their lands and waters. The Native…

In Queensland, a developer, mining proponent or other infrastructure provider planning to undertake substantial development activities likely to cause ground disturbance will usually negotiate a Cultural Heritage Management Agreement or Plan with the relevant Aboriginal or Torres Strait Islander Party.  But what can you do if this has not happened?  What if you find mining, earthworks or development occurring and you know that there is no cultural heritage plan in place? What options do First Nations people have in Queensland to take urgent action to protect their cultural heritage? The answer is that a mix of practical and legal steps can be urgently taken. First and foremost it must be determined who is undertaking the work and they must be asked to stop immediately.  You can…

In June 2015, the Australian Government released its first ever White Paper on developing northern Australia.  It states: a strong north means a strong nation. Included in it are 2, 5, 10 and 20 year implementation plans.  The paper provides that the Commonwealth Government will address challenges to development by: Making it easier to use natural assets, in close consultation with, and the support of, Indigenous communities: Providing a more welcoming investment environment; Investing in infrastructure to lower business and household costs; Reducing barriers to employing people; and Improving governance. It also states that the Commonwealth will work with the Indigenous communities to simplify and modernise land arrangements…

The High Court has recently addressed the issue of common law extinguishment. Its decision in Western Australia v Brown [2014] HCA 8 (Brown) provides guidance about the extinguishment of native title rights and interests where the Native Title Act 1993 (Cth) does not apply (generally, for acts done before 1975). Brown concerned two mining leases granted by the State of Western Australia in 1966 and 1974.  The primary question for the Court to decide was whether the leases wholly extinguished native title. The Court found that they had not on the basis that the leases did not grant the lessees a right of exclusive possession. This means that these leases are effectively in the same legal…

There has been a lot of emphasis lately on promoting Employment and Training Programs as part of right to negotiate agreements. For several decades there have been ineffective mining agreements, with parties agreeing to try to “maximise employment” but with little or no steps on how to achieve that. In our experience, successful Employment and Training Programs for large projects require: Targets – they should be set at a level that can be reached so long as the items below are carried out. They should not be too easy to achieve, but require all parties to work constructively to reach them. Once reached, they can be raised; Commitment – this should include a binding agreement for the life of the project so the parties can’t walk away if reaching targets…

One of the very simple steps Traditional Owners can take to protect their cultural heritage is to register sites on Queensland’s Cultural Heritage Database. The database was established under the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) in part to help those parties who propose development to identify any cultural  values in a particular area. A site on the database might be the location where items of cultural significance were located during a site survey, or it might be the location of culturally significant area such as a story site or a women’s place.  Importantly, access to culturally significant information can be restricted so that people searching the database do not view sensitive information. Registration on the database does not of itself mean the…