Native title year in review 2025-2026

What you need to know

• The First Nations Engagement Standard (FNES) was announced as a national environmental standard under the reformed EPBC Act, but has not yet been released for public consultation.
• Development of the FNES is linked to parallel reforms to Federal cultural heritage protection laws.
• The FNES is expected to establish minimum requirements for First Nations engagement in EPBC Act assessment and approval processes.

What you need to do

• Monitor announcements for the FNES exposure draft and consider whether you wish to make a submission during the consultation period.
• Review existing Traditional Owner engagement practices against anticipated FNES principles.
• Consider how FNES obligations may inform engagement obligations and EPBC referral criteria for future projects.

The long-anticipated reforms to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) passed both houses of Parliament on 28 November 2025. Since then, the Federal Government has progressively implemented and announced the content of its reform, including the introduction of national environmental standards (NES). The NES prescribe principles that must be met when projects are assessed under the EPBC Act. Once in effect, a project referral can only be approved if it is consistent with the NES, unless an exception applies. These new approval tests will apply from no later than 1 December 2026.

To date, four NES have been made: Matters of National Environmental Significance Standard; Environmental Offsets Standard; Community Engagement Standard; and Data and Information Standard.

However, the First Nations Engagement Standard (FNES) has not been released and no exposure draft has circulated.

The EPBC Act and First Nations engagement

In October 2020, the "Independent Review of the EPBC Act – Final Report" prepared by Professor Samuel AC criticised how the EPBC Act interacts with "the role of Indigenous Australians in protecting and conserving biodiversity and heritage and promoting the respectful use of their knowledge".

The Samuel Review recommended that the Federal Government develop a:

National Environmental Standard for Indigenous engagement and participation in decision-making. The purpose of this Standard is to ensure that Indigenous Australians who speak for and have traditional knowledge of Country are empowered to participate in decision-making, and their views and knowledge are respectfully and transparently considered in the operation of the EPBC Act.

Following the Samuel Review, the Federal Government committed in the December 2022 Nature Positive Plan to implementing a FNES "as a priority to enable First Nations views and knowledge to be considered in all project approvals and planning decisions under national environmental law". In the Second Reading Speech for the Environment Protection Reform Bill 2025, Minister Burke recommitted to the FNES but foreshadowed it would follow other "priority" NES. Almost a year later, Minister Burke's prediction has proved correct.

Development of the FNES since November 2025

While four NES were made on 19 August 2026, little detail has emerged on the FNES since the EPBC Act amendments passed. The Government has not released the FNES in exposure draft or final form. The Department of Climate Change, Energy, the Environment and Water (DCCEEW) states only that development is under way and that it will release the draft for public consultation when ready.

This delay is linked to parallel reforms to Federal cultural heritage protection laws. Senator Watt (as Minister administering the EPBC Act) advised Senate Estimates in May 2026 that timing for consultation on the FNES is linked to ongoing reforms to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (ATSIHPA). Senator Watt recognised the FNES would not be finalised "as quickly as we had initially hoped" as the Government intends for the FNES to "line up" with cultural heritage reform more broadly as the "two issues are tied".

Without recent announcements on ATSIHPA amendments or clarity on how ATSIHPA will interact with FNES, the timeframe for the FNES release remains unclear. However, the FNES must be available for public consultation for at least 20 business days before the standard is made. This consultation requirement informed the four current NES, including the Community Engagement Standard discussed below.

What can we expect the FNES to require?

Although the FNES has not yet been released for consultation, the Samuel Review suggests the FNES will establish outcomes and minimum requirements for First Nations engagement in relevant EPBC Act assessment and approval processes. The standard will likely ensure First Nations people who speak for affected Country receive meaningful and accessible information, participate early in project development, and have their views and knowledge considered respectfully and transparently.

Building on statements made in the Nature Positive Plan and DCCEEW's interim guidance for First Nations engagement, we anticipate the FNES could address direct engagement with relevant Traditional Owners and cultural authorities. This may include culturally safe and appropriate engagement methods, support for participation, protection of Indigenous Cultural and Intellectual Property, and record keeping obligations to document how engagement occurred and informed the project. This record keeping component will be necessary for proponents to demonstrate the steps taken satisfy the FNES when referring a project.

Consistent with DCCEEW's guidance on Free, Prior and Informed Consent (FPIC), the FNES may also draw on FPIC principles, particularly by requiring engagement to be free from coercion, undertaken before decisions are settled, and supported by complete, objective and comprehensible information. Consent may be relevant to particular aspects of engagement, such as participation in the process, access to Country, and the collection, disclosure or use of First Nations knowledge.

We anticipate the FNES will deal directly with First Nations engagement as distinct from the more general community engagement required by the Community Engagement Standard. This distinction would explain amendments to the Community Engagement Standard following public submissions, where reference to engagement with Indigenous persons was removed from the exposure draft. Instead, proponents are now expected to engage with affected "members of the public". This amendment may be designed to delineate between a proponent's general engagement with the public, and their specific obligations for consultation with First Nations peoples. Despite this, it is possible a proponent's obligations for First Nations engagement under the FNES will overlap with these more general community engagement obligations.

While the FNES content remains unknown, if made, the standard will shape the engagement and consultation landscape between proponents and Traditional Owners in the years to come. Proponents should closely monitor the FNES development, particularly the opportunity to make public submissions, and consider how FNES principles may apply to future projects.

Want to know more?

• EPBC Act reforms: most significant change to Australia's environmental law in decades (14 May 2026)
• Aboriginal cultural heritage reform around Australia in 2025-2026 (26 October 2026)
• EPBC update: National Environmental Standards and next steps (30 October 2026)

Authors: Tony Denholder, Partner; Libby McKillop, Partner and William Simons, Lawyer.