Kimberley PBCs and KLC Lead National Test Case on the right to negotiate and the Expedited Procedure

The Kimberley Land Council (KLC), together with Malarngowem Aboriginal Corporation RNTBC, Yanunijarra Aboriginal Corporation RNTBC, and Walalakoo Aboriginal Corporation RNTBC, has lodged an appeal to the Full Federal Court challenging the State of Western Australia’s use of the expedited procedure under the Native Title Act. The hearing is scheduled for Thursday 20 November.

The appeal contests a Federal Court decision that says the Native Title Act permits the State to exercise what has been described as “entirely unfettered” discretion in applying the expedited procedure, which avoid the right to negotiate and allows exploration and other mining tenements to be granted on native title land without negotiation with Traditional Owners. The KLC and the PBCs are arguing that the State’s discretion to apply to the expedited procedure must be exercised carefully and by reference to the statutory criteria under the Native Title Act.

Why this matters

The expedited procedure bypasses the Native Title Act’s Right to Negotiate - a central protection that ensures Traditional Owners have a meaningful say over mining and exploration on their Country. Traditional Owners and the KLC argue that the State’s current approach undermines their hard-won native title rights, erodes cultural, environmental and community protections and places an enormous burden on already under-resourced organisations.

Key concerns raised by KLC and Traditional Owners include:

·  Cost shifting: Traditional Owners and the KLC bear substantial, unrecoverable costs when responding to the State’s expedited procedure statements. In one year alone, expedited procedure matters accounted for around 23% of the KLC’s native title funding.

·  Emotional and cultural strain: Many Traditional Owners have had to give essentially the same evidence more than 15 times, repeatedly proving impacts on their rights.

·  Unrealistic evidence burden: Objecting often requires revealing culturally sensitive information, which proponents can later use in applications that risk damaging significant sites.

·  Breakdown of negotiations: Proponents can avoid early engagement and wait to see if tenements are granted without negotiation, damaging long-standing relationships.

·  Cultural harm: Exploration without consent breaches cultural protocols and can cause serious harm on Country.

KLC CEO Tyronne Garstone:

“The decision to pursue legal action was not taken lightly. Traditional Owners across the Kimberley deserve proper consultation and meaningful engagement when decisions are made about their Country.

The expedited procedure is being used inappropriately, limiting the ability of Traditional Owners to protect their cultural heritage and exercise their Native Title rights.”

Walalakoo Aboriginal Corporation Executive Chairman Robert Watson said the expedited procedure is undermining respectful and effective engagement with Traditional Owners:

“The expedited procedure allows mining companies to come onto our traditional lands without having to consider the interests of Nyikina and Mangala people unless we go through the costly and exhausting process of objecting.

We fought for years to have our Native Title recognised, but the way the State applies the expedited procedure means companies and government can walk straight past us. It feels like we are again being marginalised in decisions about our own Country.

We have always complied with the western legal system, but the system keeps looking for shortcuts around our rights so that resource and agricultural projects can move ahead quickly. That is disrespectful—and it is counter-productive. If proponents want long-term projects to succeed, they need strong, positive relationships with Traditional Owners from the very beginning. Starting with the expedited procedure puts everyone on the wrong foot.”

Mr Watson said the process creates unnecessary legal conflict, harms cultural authority, and undermines the genuine partnerships needed for project development.

A national test case

The appeal comes as the Australian Law Reform Commission prepares to release its report on the Future Acts Regime, including recommendations on the expedited procedure. This case is expected to be a significant national test of how governments should apply the expedited procedure and may have long-term implications for the rights of Traditional Owners across Australia.

More information:

·       KLC submissions to the ALRC: Submissions | ALRC

·       Human Rights Commission: Native Title Report 2001 – Chapter One: The Right to Negotiate and Human Rights