The Kelly Review and the WA Government’s Response
"Too complex, too costly and too uncertain."
The WA Native Title Review led by Glen Kelly, known as “The Kelly Review,” acknowledges what participants across Western Australia's resources sector have experienced for years.
Complex and duplicated processes, inconsistent heritage requirements, and lengthy approval timeframes have increased uncertainty for explorers, Traditional Owners and government alike during project planning and delivery.
The tabling of the Kelly Review and the WA Government's response on 9 June 2026 marked an important step towards a more consistent, standardised and transparent approach to Native Title and Aboriginal cultural heritage processes.
The Government has committed to a phased reform program commencing in 2026, including:
Introducing a new default Aboriginal heritage standard for exploration
Increasing support for Prescribed Body Corporates through a statewide Native Title Party Support Strategy
Developing new policy guidance, technical resources and a code of conduct framework for heritage consultants
At M+HL, we welcome reforms that improve certainty while supporting meaningful cultural heritage protection. Consistency and transparency across heritage processes can deliver positive outcomes for all stakeholders involved in mining and exploration activities.
However, with reforms being delivered primarily through policy and process rather than legislative change, the real test will be implementation. Success depends on practical guidance, genuine collaboration and information sharing across the sector.
We will continue to provide practical and credible insights to help clients navigate the evolving regulatory environment with confidence.
Context
The review of Native Title and Aboriginal Cultural Heritage Processes facilitated by National Native Title Tribunal Member Mr Glen Kelly, hence dubbed the Kelly Review, delivered the final report in Feb 2026, which was tabled in the Parliament of Western Australia on 9 June 2026.
The Review was tasked with examining how native title and cultural heritage processes within the mining and exploration sector could be made more efficient, effective and equitable. Critically, legislative amendment was out of scope. The Review focused exclusively on policy and process improvements within the existing statutory framework.
Recommendations
The review details 25 key recommendations covering 8 focus areas. These 25 recommendations identify systemic failures across the interactions of the three principal statutes governing mining and native title in WA, and provide a detailed roadmap for reform.
Key takeaways of the recommendations:
Reform the expedited procedure. Introduce enforceable minimum heritage and consultation requirements for exploration activities to reduce disputes and provide greater certainty for all parties.
Modernise heritage standards. Replace the outdated Regional Standard Heritage Agreement (RSHA) with a contemporary heritage standard that sets clear rules for surveys, protection measures and compensation.
Improve coordination and Traditional Owner support. Streamline Aboriginal consultation across government agencies while increasing funding, governance support and capacity building for Prescribed Body Corporates (PBCs).
Strengthen professional standards. Introduce accreditation, a code of ethics and technical guidance for heritage consultants to improve consistency, quality and accountability.
WA Government Response
The Cook Labor Government's response to the Kelly Review was released simultaneously with the Report's tabling on 9 June 2026. The Government indicated support for the majority of the 25 recommendations, with limited non-support where recommendations duplicated work already underway or conflicted with existing policy settings.
An additional $3.2 million has been allocated to implement the recommendations, building on the existing $58 million Native Title Party Capacity Building Program.
The WA Government is:
Supporting most recommendations. The Government has backed the majority of the review's proposals and will introduce a new default Aboriginal heritage standard for exploration, replacing the RSHA.
Improving guidance and consultant standards. New policy guidance, templates, a code of conduct and a voluntary certification scheme for heritage consultants will be developed with industry and Traditional Owners.
Increasing support for PBCs. A statewide Native Title Party Support Strategy will provide ongoing funding, governance assistance and training, supported by an additional $3.2 million in implementation funding.
Implementing reforms through policy rather than legislation. Working groups and consultation processes have commenced, with key reforms rolling out from 2026 to 2028, while no changes will be made to the Mining Act or Aboriginal Heritage Act.
Making notable limitations. The Government has confirmed there will be no legislative amendments to the AHA, the Mining Act or (as a Commonwealth statute) the NTA as part of the response. The reforms are therefore confined to policy, process and regulatory instruments.
Implications
Greater certainty will improve project planning and delivery. A consistent heritage standard and clearer approval pathways are expected to provide more predictable project timelines, reduce duplicate heritage surveys, and lower legal and compliance risk, enabling explorers to budget and plan with greater confidence.
Proactive heritage engagement will become a commercial advantage. Companies that invest in early engagement with Traditional Owners and align with emerging heritage standards will be better placed to avoid disputes, accelerate approvals and strengthen their social licence to operate.
Governance and tenure strategies will face increased scrutiny. Stronger expectations around expedited procedures, consultant oversight and tenement management will require explorers to adopt more disciplined compliance and due diligence practices throughout the project lifecycle.
Key Challenges
Implementation uncertainty. The reform program has a lengthy rollout to 2028, with key milestones dependent on extensive consultation that may delay delivery. Another challenge is maintaining momentum. The review report was delivered in February 2026 but was only tabled in June; industry voices noted it took pressure to prompt action. To build confidence, the Government will need to stick to clear timeframes.
Limited enforceability. As the reforms rely on policy and regulatory changes rather than legislation, their effectiveness and long-term stability may be constrained.
Resourcing and coordination. Ongoing underfunding of PBCs, voluntary certification of consultants, and fragmented government coordination may limit the reforms' practical impact. There is also the need for cultural change within institutions. Moving from a fragmented to a coordinated model means new ways of working. Agencies will have to share information and authority more willingly. Traditional Owners and industry will need to trust the process, which means genuine consultation on guidelines and standards. As CME stated, both parties must have “a genuine opportunity to inform” new guidelines so they are truly workable.
Continuing legal and compensation risk. Existing compensation and heritage agreement frameworks remain inadequate, with ILUA-based solutions not expected until 2028, leaving proponents exposed to ongoing liability.
Inadequate Funding. Turning the Kelly Review’s vision into reality will not be without hurdles. Stakeholders caution that recommendations must be fully funded. CME has warned that agencies and PBCs need “adequate funding” to carry out the new system.
What's Expected Next
Reforms will be policy driven, not legislative. The WA Government has confirmed there will be no changes to the Mining Act or Aboriginal Heritage Act, with reforms instead delivered through new standards, guidelines and agreements.
Implementation will be rolled out in a phased manner between 2026 and 2028. Key initiatives, including new heritage standards, mediation processes and Native Title reforms, will be introduced progressively to allow consultation and industry adaptation.
Standardised and consistent heritage approval framework. Standardised heritage requirements and clear survey triggers are intended to replace ad hoc negotiations, providing greater certainty for project planning and approvals.
Industry engagement is crucial. Ongoing consultation, draft guidance materials and pilot programs will give explorers and stakeholders opportunities to influence implementation while preparing for the new operating environment.
References
Cook Labor Government. (2026, June 9). Targeted review of Native Title, cultural heritage processes released [Media statement]. Government of Western Australia. https://www.wa.gov.au/government/media-statements/Cook-Labor-Government/Targeted-review-of-Native-Title,-cultural-heritage-processes-released-20260609
Department of the Premier and Cabinet (DPC). (2026, June 9). Native title and cultural heritage processes review. Western Australian Government. https://www.wa.gov.au/organisation/department-of-the-premier-and-cabinet/native-title-and-cultural-heritage-processes-review