A recent decision of the National Native Title Tribunal (the Tribunal) significantly expands activities that can be considered 'community or social activities' for the purpose of whether the expedited procedure under the Native Title Act 1993 (Cth) (NTA) applies. In Michael Ross & Others on behalf of the Cape York United Number 1 Claim v Lithium Australia NL and Another  NNTTA 11, Member McNamara decided that the expedited procedure under section 32 of the NTA did not apply on the basis that the native title party ran cultural tours on the land the subject of a mining exploration application.
Native Title, Heritage and Communities
Gilbert + Tobin has extensive experience in relation to native title and Aboriginal heritage issues.
The team have acted on significant matters for a range of clients including BHP Petroleum Australia Pty Ltd, CITIC Ltd, Woodside Energy Limited, Metals X Limited and numerous other proponent parties in relation to native title future act matters. The relevant project agreements include:
- BHP Petroleum Australia Ltd – Macedon Gas Processing plant (processing plant tenure and all associated infrastructure, including intake and offtake pipelines);
- CITIC Ltd – renegotiation of an ILUA with the Yaburara Mardudhunera peoples for project security and flexibility in its expansion phase (project wide agreement allowing pit expansion and development of additional waste dumps, tailings storage and dewatering);
- Woodside Energy Ltd – negotiation of the NWSG Burrup native title agreement, including advice on implementation of that agreement;
- Metals X Ltd – Wingelina project agreement (dealing with grant of mining leases, environmental and heritage approvals for productive mining and relocation of the town of Wingelina and associated cemeteries and associated infrastructure);
- State of Western Australia - documentation of the James Price Point Development (including provision for benefits to the relevant claim group and to immediate and broader stakeholders beyond the registered native title claimants). He was counsel for
- Western Desert Land Aboriginal Corporation – he appeared as counsel in the Holocene determination  NNTTA 49 and is familiar with the strengths of and limitations on native title parties in the negotiation and arbitration process for the purpose of future act grants.
The team have prepared and advised upon heritage management protocols, cultural heritage management plans, Aboriginal heritage management strategies (including in the face of non-co-operative traditional owners).
While the preference is always to resolve matters through negotiation wherever possible, the team is also experienced in the court processes having been counsel on significant cases at first instance, appeal and special leave to the High Court of Australia. See eg
- Ward v WA  HCA 28; 213 CLR1 (pastoral interests);
- Daniel v WA  FCA 536 (BHP Petroleum Australia Ltd, Woodside Energy Ltd and Barrick Australia Ltd); and
- Harrington-Smith v WA  FCA 31(several gold mining companies).
The team have also acted in a range of future act matters under subdivision M (the infrastructure process) and subdivision P (the right to negotiate) of Part 2 Division 3 of the Native Title Act. He also acted in the only reported matter of a termination of a native title agreement: Jabiru Metals Ltd -v- Lynch  WASC 238.
Further, Gilbert + Tobin has extensive experience in governance of not for profit organisations including indigenous organisations. Also, partner Marshall McKenna has led a complex matter of a replacement of trustee and difficult questions of what payments made in breach of trust ought to be the subject of recovery action: see Plan B Trustees v Parker  WASC 392; Plan B Trustees v Parker [No 2]  WASC 2016.
Our Heritage team has acted in contentious injunction applications in relation to matters involving the Aboriginal Heritage Act 1972 (WA) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).
Our Third Sector Advisory team are well equipped to advise indigenous communities and proponents who are interacting with those communities.
- Marshall is recognised by Chambers and Doyle's list as a preeminent practitioner in native title.
- Australia's Best Lawyers recognises Marshall as being a leading lawyer in: Litigation and Dispute Resolution, Mining Law, Native Title, and Land Access and Planning.
- Marshall was awarded ‘Native Title lawyer of the year – 2016’ for Western Australia by Australia’s Best Lawyers.