ALRC Discussion Paper released
The Australian Law Reform Commission’s (ALRC) discussion paper on the review of the future acts regime has suggested a major shakeup to the future acts regime under the Native Title Act 1993 (Cth) (NTA).
Perhaps most significantly, the ALRC suggests the abolition of the future acts ‘suite’, which is a list of very specific future acts and the procedural rights that attach to them, in favour of an expanded ‘right to negotiate’. Currently, the right to negotiate only applies to mining and exploration tenements and some compulsory acquisition of native title.
This is not yet the ALRC’s final report and any legislative reform will depend on the Federal government.
Impacts-based future acts – the right to negotiate vs the right to consultation
The new right to negotiate regime would be impacts-based. This means that the party doing the future act (usually the government) would have to determine the impact category of the act, based on the extent of the rights conferred and the nature of the activity. Acts would be categorised as either:
- Category A: acts attracting a right to consultation; or
- Category B: acts attracting a right to negotiate.
The ALRC proposes that this categorisation could be challenged by the native title party, with the National Native Title Tribunal (NNTT) empowered to decide the final categorisation.
The impact-based model is proposed as it better aligns the impact on native title rights and interests with the procedural rights afforded to native title holders. It would also be sufficiently flexible to apply to new and emerging industries, which is a gap in the current future acts regime.
There is a question posed in the paper as to whether there should be some exceptions to the impacts-based model, such as where acts are for the public benefit. Examples given are infrastructure and facilities for the public, compulsory acquisitions and acts proposed by or for the benefit of native title holders.
Abolition of the expedited procedure
Hand-in-hand with the proposal to introduce an impacts-based future acts regime, the ALRC proposes that the expedited procedure be abolished. This follows numerous submissions about problems with the expedited procedure, including that it is hardly ‘expedited’, it requires extensive resources from the NNTT, and that it is an adversarial system under which native title parties bear the burden of proving why it should not apply.
Exploration acts which may have been previously subject to the expedited procedure would be classified as either Category A or Category B future acts.
Reforms to the right to negotiate
Currently, native title holders do not have the right to object to a future act. They may object to the application of the expedited procedure for an exploration permit, but have no right to express their objection otherwise. Somewhat perversely, the only time a native title party could withhold consent to a future act would be if it is not covered by any of the future act categories (sometimes a very minor future act) and the only option for validity is an Indigenous Land Use Agreement (ILUA).
The ALRC proposes that native title parties be able to object to a future act within 6 months of its notification. The government party or grantee party could then apply to the NNTT to determine whether the future act may proceed. During this time, negotiations must pause.
If the NNTT determines that the future act cannot be done, the native title party would not be required to negotiate in response to this future act or a substantially similar future act in the same location for five years. If the NNTT decides the future act may be done, it may either send the parties back to the negotiation table or determine conditions under which the future act may be done. If no agreement had been reached within 18 months of the act’s notification (or 9 months after the NNTT’s determination that the act can proceed), a party would be able to apply to the NNTT for determination of conditions to attach to the future act.
Native title holder-led Native Title Management Plans
Another of the ALRC’s suggestions is the introduction of ‘Native Title Management Plans’ (the ALRC’s working title). While at first glance a NTMP sounds similar to an ILUA, an important difference is that they would be native title holder-led.
A prescribed body corporate (PBC) (i.e. the entity which holds native title where there has been a native title determination) could make a NTMP to set out tailored processes for future acts on their country. These would then have precedence over the other future act procedures under the NTA, though they would still be subject to any registered ILUA. Compliance with a NTMP would ensure validity of the future act.
Other questions and issues
The paper suggests some technical amendments, such as enshrining the right of a PBC to access any registered ILUAs in the area of the native title determination. This is an issue which arises where an ILUA has been registered prior to the native title determination, and there is no contractual assignment of the native title claimants’ rights to the PBC.
To improve agreement transparency, the ALRC asks whether some terms of native title agreements should be published with the option to redact and de-identify certain details.
Currently, case law tells us that with some exceptions, failure to follow the future acts procedures will not result in invalidity of a future act. The ALRC proposes that the NTA be amended to expressly provide that compliance with procedural requirements is necessary for a future act to be valid. It also asks whether the NTA should address the consequences of invalidity.
Finally, the paper recommends that PBCs be adequately funded through the creation of a perpetual capital fund, to provide core operations funding to PBCs.
Where to from here?
The ALRC is accepting submissions on its discussion paper under 10 July 2025 and is due to give its final report to the Attorney-General on 8 December 2025. It will then be up to the Federal Government to decide whether to implement any or all of the reforms.