Native Title Year in Review 2023-2024

Our Native Title Year in Review 2023-2024 covers the major legislative, judicial and policy developments over the last 12 months.

The next 12-18 months will see some significant developments on all three fronts.

Stop Press: Australian Law Reform Commission to report on the future act regime in the Native Title Act

In breaking news, on 4 June 2024 the Australian Law Reform Commission was asked to report on the future act regime in the Native Title Act 1993 (Cth).

The need for reform was flagged in the A Way Forward report in October 2021 (see our Native Title Year in Review 2021-2022 article "Modernisation of cultural heritage protection legislation begins"). However, there was no progress on this front until recently, when the 2024-2025 Federal Budget allocated $500,000 for this review.

The Terms of Reference ask the Commission to consider some of the following:

• the current operation of the future acts regime, with the aim of rectifying any inefficacy, inequality or unfairness;
• options for efficiencies in the future acts regime to reduce the time and cost of compliance for all parties;
• the rights and obligations in international instruments such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP);
• options to support native title groups to effectively engage with the future acts regime and to support consensus within groups in relation to proposed future acts;
• options to support native title groups, project proponents and governments to share in the benefits of development on native title land, and for ensuring native title groups receive commensurate and timely compensation for the diminution of native title rights and interests caused by future acts;
• options for how the future acts regime can support fair negotiations and encourage proponents and native title groups to work collaboratively in relation to future acts;
• the different levels of procedural rights of native title groups in relation to different types of future acts and whether these are appropriately aligned with the impacts on native title rights and interests; and
• how the rights in the future acts regime compare with other land rights regimes.

We will monitor the progress of the review and provide more information in further publications.

Other legislative and policy developments

The next 12 months may see:

• potential progress on Federal cultural heritage law reform (but query what will be released publicly before the next election); and
• further reforms of the consultation requirements for offshore projects.

Native title decisions

There are several decisions to watch out for in 2024-2025:

• High Court decision regarding native title compensation in an appeal from Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75. See our Native Title Year in Review 2023-2024 article "Native title compensation: a big year ahead";
• High Court decision about the test for connection, loss of connection and the use of findings in neighbouring determinations an appeal from Stuart v State of South Australia [2023] FCAFC 131. We wrote about this decision in our article "Full Court considers connection but High Court to have final word".
• High Court decision on special leave application by the Clermont-Belyando Area Native Title Claim Group in relation to the Full Court decision that native did not exist (Malone on behalf of the Clermont-Belyando Area Native Title Claim Group v State of Queensland [2023] FCAFC 190). We wrote about this decision in our article "Full Court considers connection but High Court to have final word". 
• South Australian Court of Appeal decision regarding access to trust records by common law native title holders in an appeal from Adnyamathanha Traditional Lands Association & Ors v Rangelea Holdings Pty Ltd [2023] SASC 51. We wrote about this decision in our Native Title Year in Review 2023-2024 article "Transparency for Adnyamathanha people over distribution of native title monies".
• Native title compensation decisions in the McArthur River Project Compensation Claim (NTD25/2020 and NTD16/2023) (Federal Court), Yindjibarndi Ngurra Compensation Claim (WAD37/2022); and
• NNTT determination in the remitted Santos v Gomeroi future act application, after the Full Court decision in Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26. The NNTT will consider the application of the section 39 criteria in the Native Title Act and in particular the relevance of climate change when considering the public interest in the doing of the act. The remittal application with be heard and determined by the NNTT constituted as three members – President Smith, Member Eaton and Member Kelly.

Want to know more?

• Native title appeal decisions to watch out for in 2023-2024, 3 August 2023

Author: Leonie Flynn, Expertise Counsel.