Native title year in review 2024-2025

What you need to know

• Applications for protection under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) 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.
• In August 2025, the Yagara Magandjin Aboriginal Corporation lodged a section 10 application to protect Aboriginal cultural heritage in Victoria Park from the threat of injury from the proposed development of the Brisbane 2032 Olympic stadium at that site.
• The proponent for the McPhillamy's Gold Project in NSW has brought judicial review proceedings in the Federal Court seeking to set aside the Minister's Section 10 Declaration over part of that project site, with a hearing set for December 2025.
• In Kelly v Minister for the Environment and Water [2025] FCA 264, the Federal Court dismissed a judicial review application which sought to overturn the Minister's decision not to make a declaration for the protection and preservation of Aboriginal ancestral remains in NSW, including the remains of Mungo Man and Mungo Lady.
• The absence of statutory timeframes and the slow pace of decision-making under the ATSIHP Act is creating significant challenges for all stakeholders. In Cooper v Minister for Environment and Water [2025] FCA 1009, the Federal Court found that the Minister's delay in making a decision on a section 10 application was unreasonable in the legal sense. However, because the decision was imminent at the time of judgment, the Court did not order the Minister to make a decision.

What you need to do

• Be aware that a protection application under the ATSIHP Act is a powerful means by which First Nations People can express dissatisfaction with the adequacy of cultural heritage protection provided under State or Territory legislation.
• Recognise that these applications can take years to resolve and require significant effort from proponents to engage with the process.

Recent applications

Only one new protection application under the ATSIHP Act has been publicly notified in the past year. This section 10 application (gazetted in August 2024) was made by a Tijwarl Traditional Owner seeking protection for the entirety of Lake Miranda’s lands and waters in Western Australia.

The applicant claims that the specified area is under threat from drilling and mining-related works on and under Lake Miranda proposed by a number of proponents. Specifically, the application claims that drilling beneath Lake Miranda will interrupt the Dreaming pathway of the snakes and destroy the Tjukurpa, which will break the Tjiwarl people's spiritual connection with Lake Miranda and the traditions that relate to the lake will die out

Under the ATSIHP Act, only section 10 applications require public notification, and this notification does not occur immediately upon receipt of an application. As a result, there may be additional applications currently under Ministerial consideration that have not yet been publicly disclosed.

Challenge to Section 10 Declaration over McPhillamy's Gold Project

On 13 August 2024, the Hon Tanya Plibersek MP, then Minister for the Environment and Water, declared an area that forms part of the project development site for the McPhillamys Gold Project to be a significant Aboriginal area that is to be preserved and protected from injury and desecration.   

The proponent commenced proceedings in the Federal Court seeking judicial review of the decision, with a three-day hearing set for mid-December 2025.

Unsuccessful challenge to Mungo Man and Mungo Lady reburial decision

In Kelly v Minister for the Environment and Water [2025] FCA 264, the Federal Court dismissed a judicial review application which sought to overturn the Minister for the Environment and Water's decision not to make a declaration for the protection and preservation of Aboriginal ancestral remains under section 12 of the ATSIHP Act. The Minister's decision related to an application by three Aboriginal elders for the protection of 108 Aboriginal ancestral remains in the Willandra Lakes Region of NSW, including the remains of Mungo Man and Mungo Lady, which are dated at 40,000 to 42,000 years old.

The section 12 application was brought in response to a proposal to rebury the ancestral remains close to their point of origin with a small private cultural ceremony, following which the burial sites would be returned to their existing conditions and unmarked. This proposal was approved under State and Commonwealth legislation following extensive consultation and was unanimously supported by the Willandra Aboriginal Advisory Group (AAG) which is comprised of elected members from the three Traditional Owner Groups of the Willandra Lakes Region, the Mutthi Mutthi, Ngayampaa, and Barkandji Peoples. It was also supported by the Willandra Lakes Region World Heritage Advisory Committee, which includes the nine members of the AAG.  

The Minister accepted that the ancestral remains were significant Aboriginal objects, but was not satisfied that the ancestral remains were under threat of injury or desecration. 

The Federal Court proceedings were brought by Mr Jason Kelly, a senior Mutthi Mutthi man.  Mr Kelly contended that the Minister did not understand that the section 12 applicants' submissions had been that:

• agreement on the reburial of the ancestral remains should be obtained from the three Traditional Owner Groups free of pressure after being fully informed; and
• without free, prior and informed consent, the ancestral remains were under threat of being treated inconsistently with the Aboriginal tradition of Aboriginal people visiting and maintaining the burial sites of their ancestors in order to honour them, pay respects to them, maintain a spiritual connection to them, and pass those practices on to future generations.

The Federal Court found that the applicants had sought a declaration requiring a consultation process to determine whether an action is likely to be inconsistent with Aboriginal tradition, and that the Minister did not have the power to make such a declaration.  It went on to find that, in any event, the Minister had formed the view that the consultation and engagement with Traditional Owners in relation to the reburials was consistent with the principles of free, prior and informed consent.

Mr Kelly raised a number of other grounds for review, each of which were dismissed by the Court.  

For more information about FPIC, see our Native Title Year in Review 2023-2024 article "FPIC continues to dominate the discourse".

Uncertain timeframes for making declarations impacts all stakeholders

A key procedural issue under the ATSIHP Act is the absence of statutory timeframes for the Minister for the Environment and Water to determine applications. This can result in significant delays, leaving both Traditional Owners and proponents in a state of prolonged uncertainty. We wrote about the Federal Government's commitment to reduce the backlog of applications under the ATSIHP Act in our Native Title Year in Review 2023-2024 article, "Update on Federal cultural heritage protection applications".

In May 2025, the applicant for a section 10 application concerning Murujuga (Burrup Peninsula) in Western Australia filed proceedings in the Federal Court to compel the Commonwealth Minister to resolve the application, which has been pending for over three years. The section 10 application seeks protection of the area from existing and proposed gas, urea, ammonia and hydrogen projects, citing threats to sacred sites and ancient rock carvings. We wrote about this application in our Native Title Year in Review 2022-2023 article, "Traditional Owners continue to rely on ATSIHP Act in the face of slow progress with national cultural heritage reforms".

In late August 2025, the Federal Court found that the Minister's delay in making a decision was unreasonable in the legal sense (Cooper v Minister for Environment and Water [2025] FCA 1009). However, because the decision was imminent at the time of judgment, the Court did not make an order requiring the Minister to make a decision. Instead, the matter will be listed for case management in mid-September 2025 to check on progress and case manage remaining issues, including costs. 

The judgment includes extracts from the August 2025 Ministerial Brief, and notes that the Department has recommended that a section 10 declaration be made over certain parts of the application area. We will report on this further once the Minister's decision is made.  

Legislative reform – progress remains slow

We discuss progress on cultural heritage reform in our article "Little progress in cultural heritage reforms around Australia in 2024-2025". As set out in that article, the modernisation of cultural heritage protection legislation still has a long way to go.

While cultural heritage reform is awaited, the ATSIHP Act will continue to provide a powerful means for First Nations People to preserve or protect a specified area from a threat of injury or desecration on the basis of asserted cultural heritage significance, where adequate protection is not otherwise provided at a State or Territory level.

Other Authors: Lydia O'Neill, Lawyer and Katrina Hall, Lawyer.

Want to know more?

• Update on Federal cultural heritage protection applications, 6 June 2024
• FPIC continues to dominate the discourse, 6 June 2024
• Traditional Owners continue to rely on ATSIHP Act in the face of slow progress with national cultural heritage reforms, 25 July 2023
• Cultural heritage protection applications under Commonwealth legislation on the rise, 11 July 2022