Arrow Energy had a $10 billion Liquid Natural Gas (‘LNG’) project in Queensland. The project comprised upstream (gas field), midstream (gas pipeline) and downstream (LNG plant and export facilities) facilities and infrastructure across a vast footprint. Hundreds of lots were affected across numerous native title determination applications and unclaimed areas.

Key issues and challenges:

Our lawyers were instructed to work with Arrow Energy’s in-house legal team and other consultants to:

1. undertake native title and cultural heritage compliance assessments;
2. finalise all necessary documentation to comply with identified native title requirements for the project for each part of the project area– this involved negotiating and drafting twelve (12) separate Indigenous Land Use Agreements (‘ILUAs’) some of which also covered cultural heritage management; and
3. develop implementation guides.

Some of the areas identified as part of the “Project Area” were not covered by registered native title determination applications. This made identifying, negotiating and obtaining consent from those who may hold native title rights and interests in the area extremely challenging. It also meant that any process we undertook and adopted needed to be very clearly documented.

Approach we took:

To commence the project a complex compliance plan was developed which detailed who the respective native title parties were for each part of the Project Area. The Project Area was then divided into subsections and we identified all of the individual negotiation plans and documents that needed to be produced. Our compliance assessments had regard to both the statutory and policy requirements including the Queensland Government’s policy on native title compliance contained in its Native Title Work Procedures.

This compliance assessment also involved the assessment of all of the compliance options available under Part 2 Division 3 of the Native Title Act 1993 (Cth). We evaluated the applicability of the statutory compliance options, where multiple options applied, we identified the option which provided optimum outcomes for the client (including from a cost and timeliness perspective) and presented the compliance assessment in an easy to understand compliance report format.

One potential option in the context of the native title compliance provisions was whether or not native title has been extinguished over the proposed project/tenure dealing area. In 1998 the Native Title Act 1993 was amended to clarify the legal circumstances in which native title is deemed by law to have been historically extinguished (Part 2 Division 2B of the legislation). If the analysis demonstrated that native title had been extinguished compliance for that particular parcel would only require consideration of the cultural heritage acts and not the Native Title Act 1993 (Cth).

Drafting ILUAs

Our lawyers undertook a full analysis of the ILUA and authorisation requirements for any ILUAs and developed risk management strategies to address the requirements of changing case law. The ILUAs provided consent for all aspects of the project and contained provisions for the surrender of native title to facilitate the necessary tenure grants. Our lawyers were involved in the successful registration of the twelve ILUAs that included a consent, with or without conditions, to the projects.

Implementation Guides

We assisted in developing a practical implementation protocol for the client and step by step ILUA registration guide to ensure ongoing ease of implementation and relationships between all parties.

Outcomes and benefits for client / achievements:

All ILUAs were completed to authorisation stage within 18 months. All of the ILUAs were authorised and registered without adverse submissions.

A majority of the ILUAs also included cultural heritage management process allowing for Arrow to satisfy the requirements of Part 7 of the Aboriginal Cultural Heritage Act 2003 (Qld) within the one agreement. We have continued to deal with all parties, on behalf on the client, on an as needed basis. We have retained a positive relationship with all parties and frequently deal with the main parties on a regular basis in relation to other matters.

Innovation / innovative thinking:

We designed a tailored native title compliance system for Arrow and we now implement this process for other clients including Powerlink Queensland and our local government clientele. The system is integrated into existing project planning frameworks. It includes steps to enable the client to make their own in-house compliance assessments and the preparation of tools and templates for implementing preferred compliance options.

We also provide training on all native title compliance options including through the highly regarded Institute of Public Works Engineering Australasia Queensland. The course includes Native Title and Aboriginal Cultural Heritage Compliance for Infrastructure Projects. We are currently in the process of developing a new training program for the Department of State Development, Manufacturing, Infrastructure and Planning, on behalf of Planning Institute of Australia (PIA), relating to Advancing Aboriginal and Torres Strait Interests into land use planning.

If you have a Native Title enquiry or would like to find out more information about our Indigenous legal services, then please give us a call on (07) 4041 3088 for a no obligation discussion. ☎️