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Native Title and Indigenous Cultural Heritage

In the face of a changing economy and legal environment, our native title team is able to support clients in their need for commercially strategic advice on native title and cultural heritage law requirements. Our team’s experience includes advising on the nature, establishment, maintenance, existence and extinguishment of native title and how relevant legislation operates across Federal, State and Territory jurisdictions.

Our unique understanding and practical knowledge of native title and cultural heritage law, combined with the firm’s full service offering, afford us the ability to provide our clients with expert advice on native title and Indigenous cultural heritage issues, with a focus on maximising value for our clients.

Our team has significant expertise in providing legal and related policy advice on native title and cultural heritage issues and the interpretation and operation of the Native Title Act 1993 (Cth) (NTA). In particular our team’s experience includes the provision of legal and policy advice to native title representative bodies, native title service providers, registered native title bodies corporate, native title holders, native title claimants and Commonwealth and State government departments, agencies and statutory bodies on native title and cultural heritage issues.

We also advise a number of the firm’s corporate clients in relation to the existence, negotiation and extinguishment of native title, future act processes under the NTA, and cultural heritage issues under Commonwealth, State and Territory laws. Our team works closely with our Property and Corporate and Commercial teams to provide advice in relation to land holding, leasing, structuring and taxation law implications.

We have had extensive involvement in the preparation and conduct of native title claimant applications under the NTA, including the conduct of mediation meetings and conferences and the negotiation of consent determinations of native title with Commonwealth, State and Territory Governments and other respondent parties, together with the management and coordination of historical, archival, anthropological and archaeological research. We have acted for successful appellants and supporting interveners in a number of prominent High Court appeals – North Ganalanja Aboriginal Corporation -v- Queensland (1996) (the Waanyi Case), Wik Peoples -v- Queensland (1996) (the Pastoral Lease Case) and Yanner -v- Eaton (1999).

Our firm has been involved in numerous right to negotiate processes and in the negotiation of agreements and Indigenous land use agreements (ILUAs) under the NTA and cultural heritage management plans (CHMPs) and agreements concerning mining and exploration projects, gas exploration and production projects, infrastructure projects, commercial projects, local government issues, other future acts and pastoral lease use and access agreements, often where there were multiple and overlapping claimant applications and complex issues as to the management and protection of Indigenous cultural heritage. We have assisted and advised proponents on investigations and prosecutions arising from alleged breaches of the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA).

HWL Ebsworth Lawyers is recognised as a market leader in native title law by Chambers Legal, Doyle’s Guide, Best Lawyers and Who’s Who Legal.

EXPERIENCE
  • A number of Pilbara traditional owner groups: Represented clients in negotiating comprehensive agreements and related ILUAs for Rio Tinto’s existing and expansion iron ore projects in the Pilbara (2007 to 2016). Also assisted and advised a number of these traditional owner groups with the establishment of benefit management structures to receive the substantial financial benefits under these agreements and obtaining favourable private binding rulings from the ATO in relation to income tax and GST issues.
  • Multiple Property developers: Advised our clients in relation to the development of CHMPs and cultural heritage management agreements for their projects and how best to meet the cultural heritage duty of care under the ACHA.
  • A native title holding group in the mid-west region of Western Australia: Represented our client in negotiating an ILUA, Project Agreement and related Aboriginal Heritage Agreement for the Commonwealth Government’s participation in the international Square Kilometre Array radio telescope project (2016 to 2018).
  • The Wik Peoples: Represented our client in their various native title claims and their successful High Court appeal, which culminated in the making of five consent determinations of native title recognising the existence of the Wik and Wik Way Peoples’ native title to more than 30,000 square kilometres of their traditional land and waters on western Cape York (1994 to 2012) and then assisting their registered native title body corporate to obtain grants of freehold title over the Aurukun Shire lease, Unallocated State Land and parts of the Napranum Deed of Grant in Trust (2013 and 2015). Also assisted and advised the Wik and Wik Way Peoples in the negotiation of the Western Cape Communities Co-existence Agreement with Rio Tinto (formerly Comalco) and the Queensland Government (2001).
  • A range of oil and gas and mining operators energy and resources clients: Advised our clients on Consent Determinations, RTN Deeds, work area and heritage clearance arrangements, land access and compensation claims.
  • The Indjalandji-Dhidhanu People: Represented our client in their native title claims and in consultations with the claimants and negotiations with the State, pastoralists and local government authorities in the mediation of the claimant application, resulting in the making of a consent determination of native title in 2012 with a number of ILUAs negotiated with pastoralists, a local government authority and the Queensland Government as part of the settlement of the claim (1996 to 2012).
  • The Gangalidda and Garawa People: Represented our client in the conduct and management of their native title claims which proceeded to consent determination in 2015 with a number of ILUAs negotiated with pastoralists and the Queensland Government as part of the settlement of the claims (2014 to 2018).
  • A number of native title holding and native title claim groups in Central, Northern and Western Queensland and Western Cape York: Represented our clients in relation to the negotiation of CHMPs, right to negotiate agreements, ILUAs and related agreements on:
    • a number of mining and infrastructure projects in the Galilee Basin (Alpha and Kevin’s Corner – Hancock Coal; China First – Waratah Coal; South Galilee Coal Project – Bandanna Energy and AMCI; Carmichael – Adani Mining; SunWater – Moranbah to Alpha water pipeline; Powerlink – Galilee Basin transmission line);
    • mining projects in Western Cape York (Metro Mining – Bauxite Hills Project; Chalco – Aurukun Bauxite; Oresome – Urquhart Point Mineral Sands; Greencoast Resources – Hey Point Bauxite);
    • the expansion of port facilities and infrastructure at Abbot Point (North Queensland Bulk Ports, Coordinator General and the Queensland Government and Adani Mining) and Hay Point (BHP Billiton Mitsubishi Alliance); and
    • LNG, gas pipeline and gas production projects (Arrow Energy, APLNG, QGC, Santos, APA, Jemena and Armour Energy).
  • Commonwealth and State government departments and agencies: Represented our clients on native title matters, including as a member of multi-disciplinary teams that assessed and prepared reports to the Commonwealth on applications by native title representative bodies and other eligible bodies for recognition under the NTA, funding options for Registered Native Title Bodies Corporate and undertaking the first Ministerial investigation of a native title representative body under section 203DF of the NTA.