Foreword and Fast Facts

Welcome to Ashurst's annual review of native title legal developments

Now in its fifth year, our Year in Review publication gives us all an opportunity to reflect on the previous year's native title legal developments, take stock, and plan for the year ahead.  Of course, this year is a strange one for all of us, with this "2019" edition authored by our nation-wide native title team from their own home offices, as we practice social distancing and play our part in "flattening the curve".  In this context, we want to acknowledge the particular vulnerability of Aboriginal and Torres Strait Islander communities to more serious illness if they are infected with coronavirus. We support the efforts of Government and community to keep remote communities virus free.

In the native title arena, the last 12 months has seen:

• The Timber Creek compensation claim decision delivered by the Full Bench of the High Court.  The High Court made significant observations about the approach to compensation matters in its decision, although more case law will be required to settle the wide range of compensation issues that are yet to considered by the Courts. 
• The slow and steady march towards native title legislative reform, with the Senate Legal and Constitutional Affairs Committee's report on the Commonwealth's Native Title Legislation Amendment Bill 2019 now not due until 19 August 2020.
• The pieces of the treaty puzzle slowly being put into place, with some State and Territory governments forging ahead of the Commonwealth, or looking to alternative settlement arrangements like in the Geraldton and South West regions of Western Australia.  All this following the Uluru Statement from the Heart that was gifted to the Australian people in 2017.  As a firm, we support constitutional recognition.
• The Full Court of the Federal Court resolving some of the uncertainties around registration and certification of ILUAs.
• Numerous State governments actively progressing cultural heritage law reform in their own jurisdictions, at the same time as we see a resurgence of Indigenous cultural heritage protection applications being made at a Commonwealth level. 
• A number of other decisions, covering a diverse range of issues affecting various aspects of native title law and practice.

Our national Ashurst team has remained at the forefront of these developments. Over the course of the year, our highlights have included: 

• being recognised as Band 1 in Native Title (Proponents) in Chambers Asia-Pacific, a ranking which we have maintained since 2007; 
• having the pleasure of advising the National Indigenous Australians Agency on proposed reforms to the Corporations (Aboriginal and Torres Strait Islander) Act 2006, following the Minister for Indigenous Australians, the Hon Ken Wyatt, announcing a comprehensive review in 2019, building on the findings of the Technical Review conducted in 2017; and
• the continued trust our longstanding and new clients repose in us as their legal advisors in this legally, politically and culturally complex area of the law. 

With significant native title cases awaiting hearing or judgment, such as the South West Settlement ILUA decisions and the Yindjibarndi determination appeal, on-going consultation planned in relation to native title legislation reform, and as we all face the real and intense challenges of responding to Covid-19, 2020 will be a year like no other (and, hopefully, one we do not experience again).

We encourage you to reach out to us if you would like to discuss any aspect of this publication.

In the meantime, take care of yourselves, and each other.