Native Title Year in Review 2023-2024

What you need to know

• The number of applications under section 9 and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) has slowed in the last couple of years, after a large number of applications between 2019 and 2021.
• These applications enable the Federal Minister for the Environment to make a declaration for the protection and preservation of significant Aboriginal areas and objects from "injury or desecration". A successful application can stop a project or activity from proceeding.
• The Federal Government has committed to reforming this legislation, but progress has been extremely slow. In the meantime, the Federal Government has allocated $17.7 million in the 2024-2025 Federal Budget to help reduce the backlog of complex section 9 and 10 applications and progress the reform of Australia’s cultural heritage laws.

What you need to do

• Be aware that a protection application under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) is a powerful means by which First Nations People can express dissatisfaction with the cultural heritage protection provided under State or Territory legislation.
• Be conscious of the length of time it is likely to take for the Minister to respond to these matters and the amount of work required for a proponent to participate.
• Strong relationships between proponents and First Nations Peoples (particularly in relation to the protection of cultural heritage) could avoid an application under the regime.

Update on protection applications made in 2023-24

In the last 12 months, new protection applications under section 9 and 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) have been made in the Northern Territory, Victoria and Western Australia.

Northern Territory: Binybara (Lee Point)

A section 10 application was made on behalf of the Batcho Family of the Kulumbirigin Danggalaba clan to seek the protection of an area at Binybara (Lee Point) near Darwin. The applicant claimed the land was part of a cultural landscape connected to the registered sacred sites at the tip of Lee Point and Darriba Nungalinya (Old Man Rock) located offshore from Binybara (Lee Point). It is claimed that Dreamings, burial sites, stone scatters, camping places and the remains of the prehistoric dolphin are also on the land, as well as being a ceremonial place.

The applicant alleged the specified area was under threat from development by Defence Housing Australia, which included residential housing, commercial and public infrastructure and community facilities. In response to significant community opposition, Defence Housing Australia agreed to cease its operations while the section 10 application was considered by Minister Plibersek.

The ABC reported on 28 March 2024 that Minister Plibersek had rejected the application for protection under the ATSIHP Act. The Minister told the ABC that based upon the evidence before her, she was not satisfied at law that there was a significant Aboriginal area within the project site. The Minister was satisfied that significant sites were "already protected under Northern Territory law" (ABC News, 28 March 2024).

This application was decided comparatively quickly (in approximately 6 months), bucking the usual timeframe of a year or years between application and resolution.

Victoria: Direl (Lake Tyrell)

A section 10 application has been made on behalf of five Aboriginal people from Wergaia, Wamba Wamba, and Nyeri Nyeri Traditional Owners to seek the protection of an area known as Direl, near Sea Lake, Victoria. The applicants claim the area forms a cultural landscape of high cultural significance, containing burials, archaeological and cultural sites.

The applicants claim the specified area is under threat from the potential return of the Mallee Motorised Dune Buggy Rally, ongoing industry works, a new tourist park, planning and development activities and failure of the State and Shire of Buloke to undertake a full Cultural Heritage Management Plan.

Western Australia: Pulyku (Booylgoo Range)

A section 10 application has been made by certain Tjiwarl Traditional Owners seeking the protection of an area known as Pulyku (Booylgoo Range), near Sandstone, Western Australia.

The applicants claim that the specified area is under threat from exploratory drilling and associated infrastructure proposed by Mabrouk Minerals Ltd. They state that as the spiritual essences associated with Pulyku is of a dangerous nature, any disturbance and desecration of Pulyku will result in spiritual retributions and damaging consequences for Tjiwarl native title holders.

The applicants further claim that the section 18 consent decision caused desecration and injury to the site area of Pulyku and to the Tjiwarl native title holders.

Federal Budget allocates funds

The Federal Government has allocated $17.7 million in the 2024-2025 Federal Budget to reduce the backlog and support administration of complex applications under the ATSIHP Act and progress the reform of Australia’s cultural heritage laws.

This funding will hopefully help ease the delay in applications being determined, with some in recent years taking over 2 years to be finalised.

Key Insights

Protection applications are a powerful mechanism to challenge projects which may be regarded by First Nations People as having unacceptable impacts on cultural heritage and being inadequately protected under State and Territory laws. This is especially true while national cultural heritage law reform remains outstanding.

Strong relationships between proponents and First Nations Peoples (particularly in relation to the protection of cultural heritage) could avoid an application under the regime. We write about a number of publications in the cultural heritage space coming from Government, the First Nations Heritage Protection Alliance, industry bodies and others in our Native Title Year in Review 2023-2024 article "Little movement on Federal heritage reform in 2023 – but stakeholders and industry are instigating change". These publications contain a number of principles and recommendations that may help proponents ensure adherence to best practice standards and the building of strong relationships with First Nations People.

Want to know more?

• Little movement on Federal cultural heritage reform in 2023 – but stakeholders and industry are instigating change, 27 May 2024 — Discusses recent publications in the cultural heritage space coming from Government, the First Nations Heritage Protection Alliance, industry bodies and others.
• Traditional Owners continue to rely on ATSIHP Act in the face of slow progress with national cultural heritage reforms, 25 July 2023 — Summarises applications made in 2022-2023.
• Cultural heritage protection applications under Commonwealth legislation on the rise, 11 July 2022 — Summarises applications made in 2021-2022.

Authors: Connor Davies, Senior Associate; Claudia Shelley, Lawyer and Lydia O'Neill, Graduate.