RECENT DEVELOPMENTS IN NATIVE TITLE LAW AND CULTURAL HERITAGE AFFECTING THE PETROLEUM INDUSTRY—CERTAINTY, BUT AT A PRICE

Abstract

The mosaic of the common law relating to Native Title, which underpins the Native Title and other Acts, continues to be filled in by the courts increasing certainty for all parties. Last year saw the High Court’s Ward decision—the most significant decision for the petroleum industry since Mabo in 1992. Since then there have been three more important decisions, which while not making new law, have shown how the principles enunciated in Ward and Yorta Yorta are being applied. Some of the cases examined include the Daniel and De Rose Hill decisions, which have application to petroleum tenements.

This paper will outline the recent developments, and demonstrate how the decisions have reduced uncertainty, thereby narrowing the areas about which negotiation must occur. The hurdle for proving the existence of Native Title remains high.

It has not all been in favour of industry, however. Increasingly, Native Title cases, such as Daniels have resulted in unexpected findings that some conventional titles had been invalidly granted. Titles which seemingly ought to have extinguished Native Title have turned out to be invalid, and in many cases irretrievably so. The paper looks at the implications of this for industry as well.