Native title year in review 2025-2026
What you need to know
- Reform to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHP Act) remains unresolved.
- We understand that the Commonwealth Government intends to progress this in tandem with the National Environment Standard for First Nations Engagement (FNES) under the reformed Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
- In Western Australia, the review into the State Government's native title and cultural heritage processes produced 25 recommendations for systemic reform, including enforceable minimum requirements for tenure granted under the expedited procedure.
- Tasmania has released a draft Aboriginal Heritage Bill for consultation, which would replace the ageing Aboriginal Heritage Act 1975 (Tas).
What you need to do
- Continue to monitor developments relating to ATSIHP Act reform, particularly as the FNES progresses.
- Monitor the release of the FNES for consultation. Once finalised, it will likely establish minimum First Nations engagement requirements for projects requiring EPBC Act approval.
- In Western Australia, prepare for the introduction of enforceable minimum requirements for expedited procedure tenure and engage with the proposed Task Force process.
- Consider the impact of Tasmania's proposed Aboriginal Heritage Bill on project approvals, including the new permit and management plan regime and increased penalties for non-compliance.
Introduction
We have reported annually on Federal and State/Territory cultural heritage protection reforms since our 2020 Native Title Year in Review.
Developments have continued across Australian jurisdictions over the past 12 months. At a Federal level, reform has been foreshadowed but not yet realised. Amongst the States, results vary. In Tasmania, the Tasmanian Government has released a draft Bill to modernise its ageing Aboriginal heritage legislation. The National Native Title Tribunal's report into Western Australia's Aboriginal cultural heritage regime has prompted the Government to support several recommendations. Elsewhere, States have maintained the status quo, or implemented incremental changes.
We summarise the current status of Federal and State/Territory reforms below.
Federal Reform
The Commonwealth Government's reforms to the EPBC Act allow it to prescribe First Nations engagement standards for projects referred under the EPBC Act.
While a FNES has not yet been released for consultation, we expect it to establish minimum engagement standards and requirements for obtaining environmental approvals for referred projects.
Reform to the ATSIHP Act remains unresolved. We understand that the Commonwealth Government intends to progress this in tandem with the FNES.
We may also see further consideration of Aboriginal cultural heritage following the recommendations made by the Australian Law Reform Commission in their "Fulfilling the Promise of Mabo: Reforming the Future Acts Regime in the Native Title Act 1993 (Cth) Final Report" which was tabled in June 2026. Amongst other things, the Report recommended that the Native Title Act 1993 (Cth) be amended to render void clauses that restrict a native title party from exercising rights and remedies under cultural heritage legislation.
The Commonwealth has committed to "consider the report's 86 recommendations and … to working with First Nations communities and key sectors". To date, the Commonwealth has not responded to the recommendations in the Report; this will be an area to monitor.
Aboriginal parties continue to use the ATSIHP Act to seek interim and ongoing protection declarations.
State and Territory Reform
Western Australia: In Western Australia, a review of the State Government's native title and Aboriginal cultural heritage processes, commissioned in February 2025 and conducted by the National Native Title Tribunal, has produced 25 recommendations targeting administrative and policy reform of the intersection between the Mining Act 1978 (WA), the Aboriginal Heritage Act 1972 (WA) and the Native Title Act 1993 (Cth) (Kelly Review). The Kelly Review was tabled in Parliament on 9 June 2026.
The review found WA's current framework operates as a "lowest common denominator" system, lacking the enforceable minimum requirements and duty-of-care frameworks in Queensland and the Northern Territory. This has driven high objection rates to the expedited procedure for exploration and prospecting tenure, pushing disputes into costly Heritage Protection Agreement negotiations and straining relationships between Traditional Owners and industry.
The centrepiece recommendation is developing and implementing enforceable minimum requirements for all tenure granted under the expedited procedure. An independently chaired Task Force with equal Prescribed Body Corporate (the entity holding native title on trust for the native title party) and industry representation would design these requirements.
The requirements may address notice obligations, heritage assessment standards, baseline expectations for consultation and risk management, cost provisions, and dispute resolution pathways. The Government has supported the establishment of minimum standards, and supported the Task Force in principle.
Other key proposals include:
- the retirement of the Regional Standard Heritage Agreement as a tenure condition – supported by the State;
- publication of technical guidance on sections 5 and 17 of the Aboriginal Heritage Act 1972 (WA), addressing longstanding confusion around site significance thresholds – supported by the State; and
- expansion of the Department of Planning, Lands and Heritage (DPLH) Heritage Survey Program with targeted consultation to address cultural sensitivity concerns – which the State has noted and is considering further.
The review also recommends a Prescribed Body Corporate (PBC) funding support program to address chronic under-resourcing, a consultant code of conduct and certification scheme, and cross-government coordination to reduce duplicated consultation requirements.
Longer term, the review urges a state-wide program to negotiate Indigenous Land Use Agreements for future act processes governing the grant of mining, petroleum, and other tenures. The Government supports this in principle with a 24-month timeframe for implementation.
The Government declined to support a mandatory Proponent Code of Conduct or published compensation guidelines. It also declined several recommendations on Task Force and enforcement resourcing.
The reforms represent the most significant proposed overhaul of WA's Aboriginal heritage framework since the repeal of the Aboriginal Cultural Heritage Act 2021 (WA), but are not yet focussed on law reform per se. They are (consistent with the scope of the review) focussed on policy and process reform to improve the administration of the framework in the State.
Tasmania: The Tasmanian Government has delivered on its commitment to develop Aboriginal cultural heritage laws. In March 2026, the draft Aboriginal Heritage Bill was released for public consultation. If passed, it will replace the dated Aboriginal Heritage Act 1975 (Tas).
The Bill centres on four principles of Aboriginal decision making: control; voice; custodianship; and protection. The table below outlines how the key principles are to be delivered.
Establishment of the Aboriginal Heritage Council The Council will be responsible for assessing, considering, determining, approving or refusing permits, management plans and agreements relating to Aboriginal heritage. It also has a general advisory role, including advising on the significance of Aboriginal heritage, developing guidance materials, supporting public education and awareness, and advising the Minister on registration, audits, protection orders and any other matter under the Bill. |
Implementation of an Aboriginal heritage permit and Aboriginal heritage management plan regime The regime is mandatory and the different pathways apply depending on the nature and impact of the proposed activity. The Council is responsible for approving permits and management plans. |
Increased offence provisions with significant penalties These include:
There are several defences to these offences which align with other jurisdictions. For example, acting in accordance with an Aboriginal heritage permit or approved management plan, responding to an emergency, or acting in accordance with Ministerial guidelines. |
Introduction of interim and enduring protection orders for Aboriginal heritage These orders operate similarly to those under the ATSIHP Act, although an enduring protection order may only be made where the Aboriginal heritage is "exceptional". |
Ministerial powers The power for the Minister to audit activities carried out under permits or management plans, and issue stop orders where an activity is harming or is likely to harm Aboriginal heritage. |
Northern Territory: The Heritage Amendment Bill 2026 (NT) was passed on 14 May 2026 to amend the Heritage Act 2011 (NT).
The amendments refine criteria for archaeological places, objects, and relics, and distinguish Aboriginal and Macassan archaeological places based on physical and historical evidence rather than overlapping with sites protected by the Northern Territory Aboriginal Sacred Sites Act 1989 (NT). We expect these amendments to provide greater certainty to proponents and First Nations groups on the applicable protection legislation and processes.
Queensland: In Tobane v Vena Energy Pty Ltd [2026] QLC 8, the Land Court of Queensland confirmed that a proponent is entitled to rely on the registers maintained by the National Native Title Tribunal in determining the Aboriginal party for an area. We expect this decision will provide greater certainty for proponents in discharging the Aboriginal cultural heritage obligations where there are competing or disputed native title claims.
New South Wales: The NSW Government remains committed to progressing its decade-old reform plans, building on the draft Aboriginal Cultural Heritage Bill 2018 (NSW). According to Aboriginal Affairs NSW, it is committed to delivering standalone legislation within this term of Parliament (ie before March 2027). And with $600,000 allocated to Aboriginal cultural heritage reforms in the 2026-2027 budget, it is possible that legislative action will gain momentum.
Victoria: Like last year, there are not currently any Government-led proposals for reform in Victoria, which has one of the most highly regarded legislative regimes in the country.
South Australia: The Aboriginal Heritage (Miscellaneous) Amendment Act 2024 (SA) commenced on 1 January 2025. We wrote about these reforms in our Native Title Year in Review 2024-2025 article, "Little progress in cultural heritage reform around Australia in 2024-2025".
Since then, South Australia's cultural heritage legislation has seen little reform.
Australian Capital Territory: The ACT Government has issued a "Statement of Heritage Priorities" which outlines the Government's commitments to the preservation of heritage.
Priority 5 is to "strengthen the role of First Nation peoples in their role as Traditional Custodians of their cultural heritage and enhance protection for First Nations' cultural heritage". To achieve this, "traditional Custodians must play a significant role in the conservation and management of their cultural heritage, the preservation and conservation of their cultural places and objects, and in the planning and development of their traditional land". How this translates into practice remains to be seen.
Key insights
Across Australia, the pace and ambition of Aboriginal cultural heritage reform varies, but the direction of travel is clear: stronger First Nations engagement, broader agreement-making obligations, and greater Traditional Owner decision-making authority and autonomy.
Proponents should prepare for an evolving regulatory landscape by building robust engagement processes and monitoring developments in each jurisdiction where they operate.
Want to know more?
- Little progress in cultural heritage reform around Australia in 2024-2025 (9 September 2025)
- ALRC recommends sweeping changes to the Native Title (26 October 2026)
Authors: Tony Denholder, Partner; Andrew Gay, Partner and William Simons, Lawyer.
