Foreword and fast facts 

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

2018 was another significant year for native title.  The past 12 months has seen:

• The release of exposure drafts of the Commonwealth's Native Title Legislation Amendment Bill 2019, culminating in the Bill's introduction to Parliament in February 2019.
• The High Court handing down its first ever decision relating to native title compensation in the Timber Creek appeal.  The High Court reduced the native title compensation from approximately $2.9 million to $2.5 million, but upheld the award of $1.3 million for cultural loss.  More case law will be required to settle the plethora of compensation issues which did not arise in the Timber Creek appeal.  Nevertheless, this decision provides greater certainty about how native title compensation should be assessed and marks the beginning of a new phase in the relations between native title holders and the governments and third parties that deal with and use native title land.
• The New South Wales Crown Land Management Act 2016, which commenced on 1 July 2018, passed on liability for native title compensation to Crown land managers and others in whom Crown land is vested.
• Ongoing challenges to "negotiation in good faith" in the right to negotiate context, particularly in Western Australia.  Last year saw the first case in almost 20 years that a State's good faith has been successfully challenged.
• In June 2018, the end of the temporary uncertainty about the relevant procedural rights issue caused by the Federal Court's 2016 decision in Narrier v State of Western Australia [2016] FCA 1519, with the High Court refusing the Tjiwarl People's special leave application and instead upholding the obiter comments of an earlier Full Court in 2001 (in Lardil Peoples v Queensland [2001] FCA 414).

• 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.  We also remain the only firm in Australia ranked Band 1 in native title in Chambers Asia-Pacific and have maintained that ranking since 2007.

Last year also saw a number of developments in the Indigenous cultural heritage space around Australia.  Both New South Wales and Western Australia progressed long awaited cultural heritage legislative reform and in Queensland there were new developments in both case law and legislation.  We have written about these developments in our Native Title Alert Series over the course of 2018.  

Over the past 12 months within Ashurst:

• In September 2018, we were proud to launch our second Reconciliation Action Plan at "Stretch" level.  The document is our public statement of our commitment to support reconciliation between Aboriginal and Torres Strait Islander and non-Indigenous Australians.
• As a firm, we have been deeply committed to supporting Aboriginal and Torres Strait Islander people through the provision of pro bono legal assistance since the early 1970s.  We also take very seriously the need to approach the work we do to support reconciliation from a position of listening to Aboriginal and Torres Strait Islander Australians. The Uluru Statement from the Heart that was gifted to the Australian people in 2017, is a call for action arising from one of the most significant consultation processes with Aboriginal and Torres Strait Islanders that has ever taken place in Australia.  As a firm, we support constitutional recognition. 
• In December 2018, we were delighted with the news that our own Nerida Cooley (Counsel, Brisbane) was appointed by the Attorney-General as a member of the National Native Title Tribunal.  Nerida has been a wonderful colleague and friend to the Ashurst native title team nationally, with a depth of knowledge recognised across the sector.  We warmly look forward to working with her in her new role and wish her all the best.

With significant native title cases awaiting judgment in superior courts, the Native Title Legislation Amendment Bill 2019 before Parliament, ongoing heritage law reform processes happening across Australia and an impending federal election, 2019 will be another eventful year in native title law.

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