Gridlock on Country: What’s Stalling Native Title Agreements?

Western Australia’s mining sector is increasingly experiencing gridlock on Country.

Negotiations for native title agreements have slowed in the wake of rapid legal changes and surging stakeholder expectations. The introduction and swift repeal of the Aboriginal Cultural Heritage Act 2021 (WA) (‘ACHA’) has left a regulatory vacuum that is unsettling agreement-making under the Native Title Act 1993 (Cth). Junior, mid-tier exploration, mining and energy companies are feeling the impact: without the same capacities of the major players, these smaller players can face protracted talks, higher compliance uncertainty and mounting pressure to meet standards they may not be fully equipped to handle. In this piece, we unpack the post-ACHA repeal landscape in Western Australia, examining why agreements are stalling, what recent cases and trends reveal about negotiation bottlenecks. The solution? In the current paradigm, only a tailored legal strategy will cut through the gridlock and secure sustainable outcomes.

Heritage Law Whiplash: A Post-ACHA Vacuum

For a brief moment in 2023, Western Australia saw a new era of dramatic reform for Aboriginal Heritage laws. The ACHA, described by the State Government at the time as “the most progressive cultural heritage legislation in the country”, came into full effect on 1 July 2023 after years of consultation. But within weeks, amid backlash from industry and the agricultural sector, the Government repealed the legislation, reverting to the 1972 Aboriginal Heritage Act with amendments (Government of Western Australia, 2023; Forrest, 2023). Crucially, while legal requirements regressed, stakeholder expectations did not. Traditional Owners and native title groups had been promised greater involvement and authority under the ACHA. As legal experts have noted, consultation around cultural heritage will only become more complex without a contempory legislative framework. The 2020 Juukan Gorge destruction remains a flashpoint that continues to influence regulatory and cultural expectations (Commonwealth of Australia, 2020). For many Indigenous communities, the repeal undermined trust. Yamatji Marlpa Aboriginal Corporation (YMAC, 2023) described the backflip as a reinforcement of “power imbalance” and a denial of the right to manage cultural knowledge. In practical terms, companies must now rely on bespoke agreements and internal processes, rather than a codified regime, to manage heritage obligations.

Expectations and Stakeholder Complexity

The post-ACHA landscape also coincides with elevated expectations from native title parties. As AMEC’s CEO Warren Pearce recently commented, “expectations of the groups have grown significantly” and many are “not motivated by new projects” unless significant value is offered (Williams, 2024). Many groups benefit from substantial legacy agreements, with over $1 billion in royalties are reportedly held in trust by Traditional Owner organisations (Australian Financial Review [AFR], 2024). This dynamic is reshaping how negotiations occur, and the negotiating table is now more complex. Some Traditional Owner groups are seeking not just royalties, but also compensation for past activity, expanded community benefits, or acknowledgment of historical impacts.

Negotiation Bottlenecks and Legal Risks

As mining leases that were granted in the 1970s and 1980s approach the end of their statutory terms, operators are increasingly facing commercial and legal pressure to renegotiate fresh terms with Native Title holders. Whilst there has been no blanket judicial ruling mandating renegotiation, renewals and extensions of mining leases may trigger the “right to negotiate” provisions under the Native Title Act 1993 (Cth) if they constitute “future acts” that affect Native Title (Bartlett, 2020). This results in significant procedural and strategic considerations for longstanding operations seeking tenure extension, particularly in circumstances where the original lease predates native title determinations or formal Indigenous Land Use Agreements (ILUAs). Government policy has reinforced this stance. As reported in the AFR, the WA Government has warned miners that leases without agreements in place will not be renewed (AFR, 2024). Several companies with expiring leases now face urgent negotiations, and potential shutdowns if talks fail. Even for junior explorers, bottlenecks persist. The National Native Title Tribunal’s reports show an uptick in claims that companies failed to negotiate “in good faith.” In 2022, three out of six such claims succeeded. These cases reveal common failures, including rushed timelines, insufficient engagement, and poor communication. Legal risks go beyond regulatory non-compliance. One high-profile compensation case involves the Yindjibarndi People seeking up to $1.8 billion from Fortescue Metals Group and the WA Government over historic mining without a native title agreement (Federal Court of Australia, 2024). This underscores the long-term financial consequences of bypassing robust negotiation and agreement-making.

Major Miners vs Junior Explorers: An Uneven Playing Field

Major miners like Rio Tinto and BHP have established systems for Indigenous engagement, deep financial reserves, and the capacity to absorb regulatory shocks, however juniors often don’t. Assuming smaller proponents can operate the same way is a dangerous fallacy. What works for a multinational may break a startup explorer, whether it’s a commitment to multi-million-dollar community facilities or decade-long ILUAs. Timeframes are another risk. Large companies may negotiate for years before agreement; juniors often need rapid progress to satisfy investors or comply with tenement conditions. Yet, failure to engage early and meaningfully can lead to refusal of grant or litigation for bad faith negotiation. Experts agree that even without the ACHA, consultation and heritage due diligence are still best practice. In many cases, it’s also the best insurance against costly legal or reputational fallout.

Conclusion

Gridlock is not inevitable, but navigating the WA Native Title landscape today requires more than compliance. It demands strategic, culturally respectful, and commercially grounded engagement. For junior, mid-tier exploration, mining and energy companies, this means understanding that traditional legal templates may not work. Each negotiation requires bespoke planning, early relationship-building, and legal guidance tailored to the realities of the project and the Traditional Owners involved. Mining + Heritage Legal specialises in supporting energy and resource companies navigate these processes. The stakes are higher, the timelines tighter, and the scrutiny greater. In this climate, the smartest path is not the fastest or cheapest, it’s the one built on trust, law, and a plan that works for all parties on Country.

References

Australian Financial Review. (2024, March 15). Miners forced to renegotiate 40-year-old leases. https://www.afr.com

Bartlett, R. (2020). Native title in Australia (3rd ed.). LexisNexis Butterworths.

Commonwealth of Australia. (2020). Final report into the destruction of Indigenous heritage sites at Juukan Gorge. Joint Standing Committee on Northern Australia.

Federal Court of Australia. (2024). Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia & FMG. (Case ongoing).

Forrest, A. (2023, November 2). Why repealing WA’s heritage laws undermines Aboriginal self-determination. The Conversation. https://theconversation.com

Government of Western Australia. (2023). Aboriginal Cultural Heritage Act 2021 repealed – previous act reinstated. https://www.wa.gov.au

Williams, K. (2024, April 2). Interview with Warren Pearce (AMEC). The Australian Mining Review.

Yamatji Marlpa Aboriginal Corporation. (2023, August). Response to the repeal of the ACHA. https://ymac.org.au