Commentary on Fortescue’s East Kimberley Exploration Licences and Native Title Objection
24 July 2025
Fortescue Metals Group (FMG) has applied for five mineral exploration licences covering over 2,600 km² south-east of Halls Creek in the East Kimberley.
These areas overlap in part with the Tjurabalan Native Title Determination Area (National Native Title Tribunal [NNTT], 2025). In 2022 and 2023, the WA Government indicated it intended to grant these licences via the “expedited procedure” under the Native Title Act 1993 (Cth), a streamlined process for tenure grants that are unlikely to interfere with native title rights or significant areas (NTA, s.32).
Objection & Procedural History
The Tjurabalan Native Title Lands Aboriginal Corporation, acting as trustee for the Tjurabalan People, lodged objections. Early engagement through legal representatives such as the Kimberley Land Council and Cross Country Native Title Services was promising, with draft heritage protection agreements (HPAs) exchanged and meetings proposed.
However, the process suffered setbacks due to:
The repeal of the Aboriginal Cultural Heritage Act 2021 (WA) and reversion to the Aboriginal Heritage Act 1972 (WA).
Transitions in legal representation and advisor roles.
A noticeable drop in communication and responsiveness post-October 2024, despite FMG’s continued attempts to engage (NNTT, 2025, [22]-[48]).
These factors resulted in missed deadlines and non-appearance at case management conferences.
Tribunal’s Decision
On 24 June 2025, the NNTT dismissed the objections under s.148(b) of the NTA, citing:
Repeated non-compliance.
Failure to present material evidence.
Lack of substantive engagement, even with procedural accommodations and extensions (NNTT, 2025, [49]-[50]).
The Tribunal underscored the seriousness of dismissing objections, particularly given the size and cultural significance of the area involved (NNTT, 2025, [37]-[38]).
Current Status & Implications
The Department Department of Mines, Petroleum and Exploration (DMPE) is currently reviewing the licence applications. If granted, FMG will proceed under the expedited procedure, with limited Native Title consultation obligations.
Our Take: What this means for clients
This case offers a timely and cautionary lesson for explorers and developers navigating the Native Title space, particularly in WA’s challenging legislative and operational landscape.
1. Relationships and Responsiveness Matter
In our experience, responsiveness from Traditional Owner groups and their advisors can be a major obstacle in progressing heritage agreements under the expedited procedure. Many companies struggle to secure consistent engagement due to staff turnover, resourcing levels, legal transitions, or unclear internal coordination.
What sets Mining + Heritage Legal apart is that we deal with these processes, and these groups, every day. We invest in building strong, long-term relationships with Traditional Owners and their representatives, often where others can't. This relationship capital helps us unlock stalled negotiations and shepherd agreements through challenging transitions.
2. The Value of Continued Engagement
This case also highlights a concerning pattern: parties going silent during negotiations, particularly after early agreement on key terms, can completely derail or delay projects. Legislative changes or representation shifts should not justify prolonged inaction when a draft agreement is close to finalisation.
It's worth recalling that legal practitioners, including those in advisory roles, are subject to professional obligations under the Legal Profession Uniform Law Act 2022 (WA). These include duties to progress matters without unnecessary delay and to maintain standards of fairness, even outside court proceedings.
3. Rethinking the Expedited Procedure
This case raises fundamental questions about the continued utility of the expedited procedure itself. While it is designed to streamline tenure grants, the reality is that most applications now face objections, dragging proponents into extended negotiations or mediation that usually ends with a heritage agreement, the very outcome sought under the right-to-negotiate (RTN) regime.
Given this convergence, is the expedited procedure still fit for purpose? Or should we shift focus to refining RTN and HPA frameworks, so they function more efficiently in practice?
4. Commercial Realities for Explorers
Increasingly, we are seeing compensation demands and engagement expectations that are simply not viable for explorers and even larger miners seeking to expand their operations. Unrealistic terms, combined with procedural uncertainty, threaten project timelines and investor confidence.
By bringing experienced, culturally fluent, and commercially astute negotiation support, we help clients navigate these hurdles without compromising integrity or community relationships.
Conclusion
This matter reminds us that procedural compliance alone doesn’t deliver projects, relationships do. For companies navigating the complex interface between Native Title, heritage law, and exploration and development strategy, having experienced, responsive advisors on your side can make all the difference.
For tailored advice on engaging with Native Title parties or overcoming prolonged negotiation deadlocks, get in contact with us.
References
National Native Title Tribunal. (2025, June 24). Tjurabalan Native Title Lands Aboriginal Corporation RNTBC v FMG Resources Pty Ltd & Another [2025] NNTTA 16.
Native Title Act 1993 (Cth). Retrieved from https://www.legislation.gov.au/Series/C2004A04665
Aboriginal Heritage Act 1972 (WA). Retrieved from https://www.legislation.wa.gov.au
Aboriginal Cultural Heritage Act 2021 (WA) (repealed). Retrieved from https://www.legislation.wa.gov.au