Native Title Year in Review 2022-2023

What you need to know

• Sections 9, 10 and 12 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) enable the Commonwealth Minister for the Environment to make a declaration for the protection and preservation of significant Aboriginal areas and objects from injury or desecration.
• There has been a bucking of the trend seen in recent years of an increasing numbers of applications. In the last 12 months, the number of protection applications has reduced from the unprecedented high in the previous year

What you need to do

• Despite a slight slowing in the number of applications in the past year, be aware that a protection application under the ATSIHP Act remains a powerful mechanism by which First Nations people can express dissatisfaction with cultural heritage protection outcomes under State or Territory legislation.
• Do not underestimate the work and time required to gain robust cultural heritage approvals.
  Monitor the progress of national, State and Territory cultural heritage reforms.

Recap of the ATSIHP Act declaration application provisions

Sections 9 and 10 of the ATSIHP Act enable an Aboriginal person or a group of Aboriginal people to make an application to the Minister (in writing or orally) seeking a declaration for the preservation or protection of a specific significant Aboriginal area from injury or desecration.

A critical precondition to a declaration is that the Commonwealth Minister forms the view that the area is not adequately protected under State or Territory legislation.

While there are no statutory timeframes for an application to be resolved, application processes usually take more than 12 months to reach a decision.

Protection applications made in 2022 and 2023

There have been a number of new applications made in the last 12 months in Western Australia, South Australia, New South Wales, and Queensland.
We summarise these applications below.

New South Wales

Mount Pleasant Operation mine and The Pocket, near Muswellbrook: A section 10 application has been made by representatives of the Indigenous community of the Plains Clans of the Wonnarua People seeking the long-term preservation and protection of an area that contains a high concentration of Aboriginal sites.

The applicant attributes the threat of injury or desecration to the operation and extension of the Mount Pleasant Operation mine and rehabilitation work. More details can be found here.

Western Australia

Burrup Peninsula and Dampier Archipelago: This section 10 application follows an earlier refusal by the Federal Environment Minister to make a section 9 emergency declaration which would have stopped the construction of a fertiliser plant.

The application has been made on behalf of the Mardudhunera language group and the Kuruma/Mardudhunera language group to protect parts of the area known as Murujuga (or the Burrup Peninsula and Dampier Archipelago). The applicant seeks to protect the area from numerous proposed gas projects and the fertiliser plant project. The applicant primarily claims a threat of injury or desecration to many sacred sites and ancient rock carvings of Murujuga. More details can be found here.

South Australia

Morrison Bore: A section 10 application has been made on behalf of an Anangu senior lore man to seek the protection of the area known as Morrison Bore and an area of a radius 6 kilometres around Morrison Bore, in the Anangu Pitjantjatjara Yankunytjatjara Lands. The applicant claims that land of extreme spiritual and cultural significance is under threat from unauthorised occupants and the claim of ownership by another person. More details can be found here.

Queensland

Djaki Kundu, near Gympie: This section 10 application was made on behalf of the Sovereign Native Tribes of the Kabi First Nation State to protect the area known as Djaki Kundu, near Gympie, Queensland. The applicant attributed the potential threat of injury or desecration to the Queensland Department of Transport and Main Roads Bruce Highway – Cooroy to Curra project.
The applicant stated that the project works would destroy a number of sacred sites, prevent the free exercise of religious and spiritual practice and destroy the foundations of spirituality and tribal law or lore customs and culture. More details can be found here.

Point Lookout, North Stradbroke Island: A section 10 application has been made by eight Aboriginal Elders, together known as the Quandamooka Truth Embassy. The applicants seek to protect the area known as Point Lookout, on Stradbroke Island from the threat of the construction of a Whale Interpretation Facility. The applicants stated that the Facility is inconsistent with Aboriginal tradition, is culturally disrespectful to Quandamooka peoples and changes the cultural integrity of the area. More details can be found here.

Legislative reform

We discuss progress on cultural heritage reform in our article "No new Federal cultural heritage legislation in 2023 - but change is coming".

As set out in that article, the Federal Government has re-signed the Partnership Agreement with the First Nations Heritage Protection Alliance to jointly consider and develop recommendations for reform. That joint working group's reform timetable has already slipped and while Stage 2 consultations are currently underway, the modernisation of cultural heritage protection legislation still has a long way to go.

In the meantime, protection applications under the ATSIHP Act remain a powerful mechanism by which First Nations People can express their dissatisfaction with the effectiveness of cultural heritage protection outcomes under State or Territory legislation.

Author: Connor Davies, Senior Asssociate