AUSTRALIA: An Introduction to Native Title: Traditional Owners

Indigenous rights have now been recognised in more than half of the land in Australia. This places Australia’s First Peoples as significant stakeholders when it comes to solving Australia’s major land-related challenges, including the decarbonisation of mining, electricity transmission for new energy projects, new housing developments and the supply of environmental offsets. Governments and industry need to approach Traditional Owners, Aboriginal Land Councils and other Indigenous groups as partners they need to bring to the table from the earliest stages of planning and strategy.

In native title, compensation continues to be a key topic. From a practical perspective, the need for effective structuring and rules across Prescribed Bodies Corporate (PBCs) and related entities is vital for Indigenous communities to effectively achieve their goals.

Agreement Making

Whether it be native title future acts, Aboriginal cultural heritage protocols or any other land- or water-related matter, expectations around agreement-making with Indigenous groups have changed. Traditional Owners, Aboriginal Land Councils and other Indigenous groups have significant land interests that will be critical in solving some key land- and water-related challenges for government and industry. Many Indigenous organisations are already taking a proactive approach to developing their own projects in housing, energy or other areas.

Lawyers acting for government and proponents should be explaining current expectations of best practice engagement rather than simply advising on the minimum standard allowed under legislation. Those government agencies and proponents who are not developing a reputation for best practice can experience challenges on subsequent engagements.

Energy

Australia is undergoing an energy transition and, with the recent announcements of the Federal First Nations Clean Energy Strategy, there is an ongoing focus on how Indigenous People will be part of this. Land and waters over which Indigenous rights or claims exist will certainly be critical for transmission, access and the footprint of some projects, as will cultural heritage management.   

The central issue remains consistent – that Indigenous people are tangibly involved in the planning, development and maintenance of new energy sources. Indigenous communities are aiming to be proactive in decisions relating to their land interests rather than reactive to third-party proposals. This approach will also benefit industry and government, but is dependent on funding and appropriate advice being available to enable communities to make informed decisions about how energy projects fit into their land-use planning. 

The First Nations Clean Energy Network has developed best practice negotiation guidelines, which are essential reading for proponents. A benchmark is equity stakes for traditional owner groups and these have been announced on some major energy projects. Proponents committed to best practice should also explore co-design in recognition of the insight that traditional owners can bring to land issues that exceed what is in environmental regulations. For projects requiring significant land, consideration needs to be given to ensuring traditional connections to country are maintained.

There is also a strong push to grow the critical minerals sector. The scale of production required to meet the demand for lithium, cobalt, graphite, manganese and other minerals used in energy storage has been rapidly increasing for many years. Exploration and mining proponents should engage traditional owners at the early stages of a project given Native Title Act and cultural heritage law requirements along with social licence expectations. 

On a smaller scale, microgrids will provide energy resilience for many remote Indigenous communities. This is relevant to Native Title as improved energy reliability will support Traditional Owners to return to country. Innovative Indigenous-led projects are well underway though the regulatory framework around stand-alone power systems continues to be a challenge in some jurisdictions.

Housing and Development

There is an opportunity for Indigenous landowners to play an important role in tackling Australia’s housing crisis. By area, Indigenous groups are collectively the largest private landowners in eastern NSW, including substantial landholdings in the burgeoning Six Cities Region, with groups in other states and territories also holding substantial land interests. While the protection of country and community remain paramount, the need to use land to provide housing, health, education and wealth looms large for these communities. Many groups have begun to explore their own small- to large-scale land developments.

Environmental Markets and Management

The effectiveness of environmental markets will have a unique impact on Indigenous communities. Many Indigenous communities have rights or ownership over, or a legal claim to, much of the land and waters that governments, developers and conservationists are looking to use for conservation and environmental offsets. At least 51% of Australia’s landmass has some form of Indigenous right recognised in it. This land is typically remote or on the urban fringe and is often the only land left with high ecological values in the region. However, decisions about how to use the land are not always straightforward. While some Indigenous groups want to conserve their land, others want to use it to facilitate housing and economic development for their people. As Indigenous groups have an interest in much of the land with high ecological values, these differences are likely to set the scene for the politics of environmental markets in the coming years.

Traditional owners’ understanding of country is increasingly being recognised as critical to managing bushfire risks, but there is considerably more environmental knowledge that traditional owners can bring. At a project level, proponents should recognise that caring for country is intrinsically connected to culture and questions around environmental management and respect for Indigenous knowledge of land are likely to be ongoing themes in cultural heritage and future act discussions. 

Cultural Heritage

Western Australia has been the only Australian jurisdiction to implement new cultural heritage laws since the destruction at Juukan Gorge. However, this reform was short-lived with the WA government withdrawing its own legislation – the Aboriginal Cultural Heritage Act 2021 – in response to concerted public and stakeholder criticism. The complexity of the law and how much of the practical detail of its operation was released very close to the commencement date as guidelines, rather than forming part of the Act as passed, which brought about particular complications. The result, from the perspective of anyone who wants effective heritage protection on terms that respect human rights, is the worst of both worlds. While there is a desperate need for reform there is no political appetite because of how bruising this experience has been.

Native Title Compensation

Since the High Court first considered the principles relating to an award of compensation under the Commonwealth Native Title Act in 2019, there has been increased interest across Australia in the making of Native Title compensation claims. Current and historic cases have resolved some of the issues regarding awards of Native Title compensation. However, procedural matters regarding how claims can or should be made are still being determined by the courts. Broader questions of determining liability and quantum for mining acts across Australia are also yet to be resolved and represent some of the complex challenges Indigenous groups face in successfully prosecuting their claims.

Looking Ahead

The next few years will be important in defining how Indigenous communities engage with governments, corporations and the courts to activate the economic potential of their land as well as to protect areas of particular significance. A commitment to supporting Indigenous people to enforce their rights and achieve outcomes of best practice for their communities remains vital.