(Cth) Prohibit Gag Clauses in Indigenous Land Use Agreements
Author: Zehra Yamac, Liliana Faull, Henning Kallies, Noah Genziuk, Emma Hillis, Anthea Sheriff, Eliza Kral, Marise Bassily, Hannah Kim & Erin Shutter | Publish date: 28/9/2026
Content Warning: Aboriginal and Torres Strait Islander readers are warned that the following brief may contain the names of deceased persons.
P: In Australia, Indigenous Land Use Agreements (ILUAs) may contain ‘gag clauses’ applying to native title holders.
S: The Minister for Indigenous Australians should amend Section 24BE, 24CE and 24DF of the Native Title Act 1993 (Cth) to prohibit the use of clauses in Indigenous Land Use Agreements that prevent native title parties from exercising their native title rights, raising grievances and accessing legal remedies.
E: Australian Law Reform Commission (2026): ‘prohibi[t] clauses [in ILUAs] which have the effect of limiting or restricting native title parties from raising grievances, exercising rights [or] accessing remedies under the law … sometimes referred to as “gag clauses”’.
Problem Identification:
Sections 24BE, 24CE and 24DF of the Native Title Act 1993 (Cth) (the Act) allow parties to include ‘any conditions’ or clauses in the 3 different types of Indigenous Land Use Agreements (ILUAs).
According to the Joint Standing Committee on Northern Australia (JSCNA), this has led to the ‘systematic use of … “gag clauses”’ that place a range of restrictions on native title parties, including their ‘rights to seek Commonwealth intervention or to publicly raise concerns’. The JSCNA found that this leaves native title parties ‘unable to adequately protect cultural heritage through agreements negotiated in the context of the Native Title Act.’
Context:
According to the Australian Law Reform Commission (ALRC), in the context of ILUAs, the expression ‘gag clauses’ refers to clauses that ‘have the effect of limiting … native title parties from raising grievances, exercising rights, accessing remedies under the law, or disclosing information to authorities’. They noted that ‘the expression … has no fixed meaning’ but provides a widely used shorthand for these forms of restrictive clauses.
The Act refers to native title as the ‘rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters’. Native title exists in cases where there are ‘traditional laws [and] customs’ connecting groups to those lands or waters, and where that connection is ‘recognised by the common law of Australia.’
According to the National Native Title Tribunal, an ILUA refers to an ‘agreement between native title parties and other people or bodies about the use and management of areas of land and/or waters’, such as for ‘mining, … agricultural and pastoral use’. Dr Michael Lucas, Executive Director of consultancy firm Empius, found that where parties fail to reach an agreement, arbitration processes generally privilege developers over native title parties, with courts blocking proposals in ‘just three out of 515 … tribunal decisions’ between 2021 and 2022.
The ‘need for legislative guidance about inclusions in agreements’ was highlighted by the JSCNA after the destruction of the 46,000-year-old Juukan Gorge rock shelters by the mining company Rio Tinto. As their inquiry found, the ILUA between the Puutu Kunti Kurrama and Pinikura peoples Aboriginal Corporation (PKKP) and Rio Tinto contained gag clauses that ‘prevented the PKKP seeking Commonwealth protections’.
Arguments:
Environmental and Natural Resources Law Associate Professor Dr Alex Wawryk explained that gag clauses ‘prevent [native title parties] from criticizing [sic] the operations of the company and/or … reporting [legislative] breaches’. Then-PKKP CEO Carol Meredith recounted that when the PKKP raised concerns over Juukan Gorge, Rio Tinto’s lawyers reminded them ‘not to speak about this publicly—that [they] had the gag clauses’. Similarly, The Guardian reported that gag clauses prevented Banjima native title parties ‘from objecting to an application to destroy up to 40 [cultural heritage] sites despite telling an archeological advisor they would “suffer spiritual and physical harm if they are destroyed”.’
Agricultural peak body AgForce has opposed the introduction of ‘mandatory … standards’ for ILUA clauses, arguing that this would ‘reduc[e] flexibility’ and ‘will not foster collaboration between the parties.’ However, the ALRC noted that collaboration is ‘compromised by inequality in the bargaining position of native title parties relative to other negotiating parties.’ The JSCNA found that developers offer agreements ‘on a take-it or leave-it basis … and failure to accept terms [like gag clauses] means effective exclusion’ from the royalties associated with corporate projects.
Advice/Solution Identification:
The ALRC, JSCNA, and the National Native Title Council have called for the prohibition of gag clauses in ILUAs. The ALRC emphasised this could ‘protect the fundamental rights of access to justice and freedom of expression of native title parties’.
Precedent:
There is domestic precedent for prohibiting gag clauses regarding Indigenous Land Use Agreements. In WA, heritage legislation was amended in 2023 to prohibit gag clauses.
Public Support of the Solution
(This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief.)
Australian Law Reform Commission (ALRC) (note: they recognise and sometimes use the term ‘gag clause’ but prefer to specify types of clauses to restrict)
PKKP Aboriginal Corporation (note: they have expressed support for the recommendations made by the JSCNA, which include the prohibition of gag clauses)
Broad Support
Save Our Songlines - A movement centred around the Murujuga native title parties on the Burrup Peninsula. They have advocated for the removal of gag clauses ‘that prevent [native title parties] from speaking out’, but it is unclear whether this is in reference to gag clauses as a whole or only to those binding the Murujuga Aboriginal Corporation. The gag clause they are bound by is part of an agreement over land use, but not specifically an ILUA.
Australasian Centre for Corporate Responsibility - They have petitioned for BHP to ‘Remove gag orders on [native title parties] so they can speak publicly about cultural heritage concerns on their land’. However, they have not made any statements advocating a general prohibition on gag clauses.
Scholars Oliveri, Porter, Davies & James - The authors state: ‘the Juukan Gorge disaster demonstrates that asking “Whose stories? Who has the right to tell them?” are both critical and fundamental to ensuring that the voices of First Nations Peoples are heard, especially concerning the safeguarding of their land and culture.’ They advocate for stronger shared values and communication between native title holders and proponents. While not explicitly advocating the prohibition of gag orders, their recommendation of a shared-values approach to business practices promotes an environment of transparency and dialogue in which the use of gag orders would conflict with that approach.
The Law Society of New South Wales and The Law Council of Australia - They support ‘sunset dates for particular clauses such as non-disparagement clauses’ (which would be a form of gag clause) and suggest ‘prohibiting clauses which would be regarded as inappropriate on public policy grounds’.
First Nations Bailai, Gurang, Gooreng Gooreng Taribelang Bunda People Aboriginal Corporation Registered Native Title Body Corporate - They call for gag clauses to be ‘discouraged’. However, they do not advocate for the general prohibition of gag clauses.
Australian Human Rights Commission - They support the ‘prohibition of certain provisions’ in agreements, and note issues with gag clauses. However, they stop short of specifying gag clauses as a candidate for prohibition.
Wagyl Kaip Southern Noongar - They have described the WA gag clause ban as ‘a welcome first step’ but have not expressed support for a Commonwealth-level ban.
News Coverage:
ABC News - “Traditional owners in WA's north demand removal of 'gag clauses' to help them protect ancient rock art”. This article examined traditional owners in WA’s Pilbara region, demanding that the state government remove a ‘gag clause’ from the agreement they signed that included a ‘No Objections’ clause. The region is known for its 50,000-year-old rock art. By: Amelia Searson | 24 March 2022 - Read the article here.
The Guardian - “Indigenous elders in WA say ‘gag clause’ denies them a say in industrial developments on their land”. This article discussed the 27 elders and custodians of the Burrup Peninsula who signed an open letter calling for the removal of a ‘gag clause’ that undermined their capacity to oppose industrial developments on their land. By: Royce Kurmelovs | 24 March 2022 - Read the article here.
ABC News - “Juukan Gorge traditional owners given 'gag order' warning by lawyers for Rio Tinto, inquiry hears”. This article reported on now-former CEO Carol Meredith’s submissions to the JSCNA on gag clauses. By: Eliza Borrello and Karen Michelmore | 12 October 2020 - Read the article here.
The Conversation - “Juukan Gorge inquiry puts Rio Tinto on notice, but without drastic reforms, it could happen again”. This article covered the role of and issues with corporate compliance in light of Juukan Gorge’s destruction. By: Deanna Kemp, John Owen and Rodger Barnes | 9 December 2020 - Read the article here.
Where to go to learn more:
(2026) Fulfilling the Promise of Mabo: Reforming the Future Acts Regime in the Native Title Act 1993 (Cth) | Australian Law Reform Commission (ALRC) - This report provided 86 recommendations made by the ALRC to reform the rules governing indigenous land use agreements following the ALRC’s inquiry into the future acts regime. This included a prohibition on gag clauses. Read the report here.
(2021) A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge | Joint Standing Committee on Northern Australia (JSCNA) - This report detailed the 8 core recommendations made by the JSCNA to improve Australia’s cultural heritage laws following the destruction of the Juukan Gorge rock shelters. These recommendations included a prohibition on gag clauses. Read the report here.
(n.d.) Agreements Under the Native Title Act 1993 (Cth) | Agreements Treaties and Negotiated Settlements - This database offered a comprehensive analysis of agreements and treaties made between Indigenous Australians, governments, and corporate entities, with a focus on land rights, native title, empowerment, and others. View the clauses and rights contained in past Indigenous Land Use Agreements here.
(2020) Juukan Gorge Destruction: Extractivism and the Australian Settler-colonial Imagination | Arena Quarterly - This journal article provided a deeper analysis of the ideological dimensions of the destruction of cultural heritage. Read the article here.
Aboriginal Heritage Act 1972 (WA) - This Act was amended in 2021 to make a range of gag clauses placed on native title parties in ILUAs ‘of no effect’ in WA. Read the full Act here and the amended section here.
Native Title Act 1993 (Cth) - This Act sets out the requirements for Native Title and Indigenous Land Use Agreements. Read the full Act here.
Human Perspective:
CW: Destruction of Aboriginal Cultural Heritage Sites
Walter is an elder and custodian of a sacred site his family has cared for across generations. In 2013, his community entered into an Indigenous Land Use Agreement with a mining company, which included a clause preventing them from publicly raising concerns about the company's activities without the company’s permission. Knowing that the project would likely go ahead either way, Walter and the other elders felt compelled to accept the agreement if they wanted any benefits for their community out of it. When updated plans revealed that a blast would destroy an important cultural site where prior generations learned the stories of their ancestors, Walter and his community tried to stop it. The mining company’s lawyers told them the clause in their agreement prevented them from speaking to the media or contacting heritage authorities without the company's express consent. The blast went ahead. The site, continuously occupied for tens of thousands of years, was destroyed in minutes. Walter feels devastated knowing his grandchildren will grow up feeling disconnected from their land, knowing what was there but never experiencing it. Walter and his community had tried every avenue available to them, but were left feeling distraught and disempowered after their ability to act was prohibited by the clause.
To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.
Conflict of interest/acknowledgment statement:
N/A.
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Reference list:
Aboriginal Heritage Act 1972 (WA). https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_49437.pdf/$FILE/Aboriginal%20Heritage%20Act%201972%20-%20%5B04-n0-00%5D.pdf?OpenElement
AgForce Queensland Farmers Limited. (2025). Re: Australian Law Reform Commission: Review of the Future Acts Regime. https://www.alrc.gov.au/wp-content/uploads/2025/08/111.-AgForce-Queensland-Farmers-Ltd.pdf
Agreements Treaties and Negotiated Settlements (n.d.). Agreements Under the Native Title Act 1993 (Cth). Retrieved August 8, 2026, from https://www.atns.net.au/native-title-agreements
Allam, L., & Wahlquist, C. (2020, August 12). Mining industry opposes new laws for Aboriginal heritage sites despite Juukan Gorge failures. The Guardian. https://www.theguardian.com/australia-news/2020/aug/12/mining-industry-opposes-new-laws-for-aboriginal-heritage-sites-despite-juukan-gorge-failures
Australian Law Reform Commission. (2026). Fulfilling the Promise of Mabo: Reforming the Future Acts Regime in the Native Title Act 1993 (Cth). https://www.alrc.gov.au/wp-content/uploads/2026/04/Fulfilling-the-Promise-of-Mabo-Reforming-the-Future-Acts-Regime-in-the-Native-Title-Act-1993-Cth-ALRC-Report-144-FINAL-REPORT.pdf
Department of Planning, Lands and Heritage. (2023, November 15). Aboriginal cultural heritage legislation amended. Government of Western Australia. https://www.wa.gov.au/government/announcements/aboriginal-cultural-heritage-legislation-amended
Joint Standing Committee on Northern Australia. (2021). A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge. Parliament of Australia. https://parlinfo.aph.gov.au/parlInfo/download/committees/reportjnt/024757/toc_pdf/AWayForward.pdf
Joint Standing Committee on Northern Australia. (2020). Juukan Gorge - Interim Report. Parliament of Australia. https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Former_Committees/Northern_Australia_46P/CavesatJuukanGorge/Interim_Report/section?id=committees%2freportjnt%2f024579%2f75133
Joint Standing Committee on Northern Australia. (2020). Official Committee Hansard: Destruction of 46,000-year-old caves at the Juukan Gorge. Parliament of Australia. https://www.aph.gov.au/Parliamentary_Business/Hansard/Hansard_Display?bid=committees/commjnt/db1a8d24-2fa5-4ce5-a368-98e3ade9ecfc/&sid=0000
National Native Title Tribunal. (2024). Indigenous Land Use Agreements. Commonwealth of Australia. https://www.nntt.gov.au/publications_all/information-publications/indigenous-land-use-agreements-ilua/ILUA-factsheet-2024.pdf
Native Title Act 1993 (Cth). https://www.legislation.gov.au/C2004A04665/2024-06-12/2024-06-12/text/original/epub/OEBPS/document_1/document_1.html
Tout, D. (2020, December). Juukan Gorge Destruction: Extractivism and the Australian Settler-colonial Imagination. Arena Quarterly. https://arena.org.au/juukan-gorge-destruction-extractivism-and-the-australian-settler-colonial-imagination/
Wawryk, A. (2023). Mining and the Protection of Aboriginal Heritage in South Australia. William & Mary Environmental Law and Policy Review, 47(3), 749–825. https://scholarship.law.wm.edu/wmelpr/vol47/iss3/6/
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