Legal development

Other matters to watch out for in 2022 2023

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    Our Native Title Year in Review 2021-2022 articles cover the major legislative, judicial and policy developments over the last 12 months.

    The reform agenda in the Indigenous land law space remains dynamic.  In addition to the heritage reforms at the Federal and WA level and the new Northern Territory Aboriginal Investment Corporation in the ALRA, there are a range of other developments to watch in 2022-2023.

    WA's Forrest & Forrest issue still not resolved

    Will the new Federal Government work with the WA Government to progress a fix for the validation issue arising from the High Court's  Forrest & Forrest Pty Ltd v Wilson ([2017] HCA 30) mining lease invalidity case in WA?  

    See more in our April 2021 article Native Title Act reforms finally enacted.
    CATSI Act Reforms

    The CATSI Act Amendment Bill 2021 lapsed when the 2022 election was called.

    Many years of work has gone into the review, which has seen multiple consultation processes, reports and reviews.  

    See more in our April 2021 article Changes abound for the governance of Indigenous corporations.

    Where does this work sit in the new Federal Government's First Nations reform agenda? 
    NSW Aboriginal Land Rights reform

    In November 2021, the NSW Government released the 2021 Statutory review of the ALRA.  Watch for the release of a proposed public exposure draft of an amendment bill to make administrative and operational changes to improve existing structures and administration of the Act and Land Councils.  

    In April 2022 the NSW Audit Office released its report Facilitating and administering Aboriginal land claim processes.  The report provides a series of recommendations to resolve the delays and inefficiencies in progress land claims.  Watch for action by the NSW Departments of Premier and Cabinet and Planning and Environment in 2022/2023 in response to these recommendations.
    Cultural heritage legislative reform in other States

    Several States and Territories have flagged (or commenced) reforms to their cultural heritage protection legislation over the last few years.  

    Those with reforms commenced prior to the release of the Way Forward Report may need to go back to the drawing board in light of the recommendations in that Report.

    Watch for announcement from the State and Territory governments in this space. 
    Joint Standing Committee's further report

    In February 2022 the Joint Standing Committee for Northern Australia followed up the Way Forward Report with The engagement of Traditional Owners in the economic development of northern Australia.

    The report focuses on overcoming the obstacles to the realisation of the economic opportunities for Traditional Owners associated with land rights, native title and other land-related agreements, especially as they relate to structure and funding of representative bodies, other Indigenous organisations and government entities.

    The Joint Standing Committee has made an enormous contribution over the last 2 years to the wider understanding of the aspirations of Indigenous Australians in relation heritage, as well as to the identification of legislative and other barriers to better outcomes in the agreement making space.

    What next for this important Committee in 2022/2023?  
    Further review of the Native Title Act

    Calls for review of the Native Title Act have been made in both Joint Standing Committee reports, particularly around agreement making. 

    Native Title Act reform would be a complicated addition to the new Government's First Nations issues reform agenda, particularly given the large amount of work to do on cultural heritage reform.   

    Will we see any developments in this space in 2022/2023?
    Authors: Leonie Flynn, Expertise Counsel