Inquiry into the native title 'future acts' regime: Issues Paper released by the ALRC

An opportunity to provide feedback 7 min read

The Australian Law Reform Commission (ALRC) is conducting a review of the 'future acts' regime in the Native Title Act 1993 (Cth) (NTA). This review comes in light of over 30 years of operation of the NTA and nearly a decade since the last review. The 'future acts' provisions of the NTA are important provisions that apply when an entity is seeking new approvals or grants to do something that might impact native title rights. They are the provisions of the Act that a project proponent will most likely engage with when interacting with native title holders.

The inquiry will provide an important opportunity for all stakeholders to voice their concerns in relation to the current operation of the future acts regime, and to propose reforms to address those issues. In this Insight, we discuss the key issues raised in the Issues Paper.

Consultation and timeframe

The Issues Paper (published in November 2024) is the first formal publication of the ALRC's inquiry, and seeks feedback from stakeholders on a range of questions and ideas for reform. The ALRC will accept submissions until 21 February 2025 and will publish a Discussion Paper with more detailed proposals for reform in the first half of 2025. The final report is due by 8 December 2025.

What prompted the inquiry?

The inquiry was prompted by the Joint Standing Committee on Northern Australia's 2020 inquiry into the destruction of 46,000-year-old caves at the Juukan Gorge in the Pilbara region of Western Australia, which called on the Australian Government to review the NTA 'with the aim of addressing inequalities in the negotiating position of Aboriginal and Torres Strait Islander peoples in the context of the future act regime'.¹

What will the inquiry involve?

This inquiry is being led by ALRC Commissioner Tony McAvoy SC, and the ALRC President, Hon Justice Mordecai Bromberg.

The Terms of Reference for the inquiry are broad and require the ALRC to consider many issues, including:²

• The intention of the Native Title Act as a special measure for the advancement of First Nations peoples.
• Current operation of the future acts regime, including Indigenous Land Use Agreements, with the aim of rectifying any inefficacy, inequality or unfairness.
• Reducing time and cost compliance via possible efficiencies.
• The rights and obligations recognised in the international instruments to which Australia is a party or which it has pledged to support, including the United Nations Declaration on the Rights of Indigenous People.
• Consensus building within native title groups in relation to proposed future acts.
• Facilitating shared benefits from development on native title land, including opportunities for native title groups to lead or co-lead development.
• How the future acts regime can support fair negotiations and collaboration between proponents and native title groups in relation to future acts.
• Evaluating the alignment of procedural rights of native title groups with the impacts of different types of future acts on native title rights and interests.

Further, the ALRC is to conduct the review with regard to the socio-economic outcomes and priority reforms of the National Agreement on Closing the Gap.³

What are the key issues raised in the Issues Paper?

The Issues Paper discusses a number of key issues relating to the future acts regime based on the ALRC's consultations and research so far. These include:⁴

• Resourcing and capacity constraints can be significant barriers to meaningful participation in the future acts regime, for both native title parties and some proponents.
• Agreement-making can have important benefits, such as providing consent, certainty, and benefits for native title parties and proponents, but its success depends on the parties involved and the resources available to them.
• The strength of procedural rights may not always align with the potential impact of some categories of future acts on native title rights and interests. Additionally, there are few, if any, legal consequences for non-compliance with the requirements of the future acts regime.
• The right to negotiate applies to only limited future acts and the six-month negotiation window may limit its effectiveness. It can be difficult to satisfy the onus of proof that a party has not negotiated in good faith.
• The expedited procedure is viewed as problematic, particularly in how it intersects with state and territory Aboriginal and Torres Strait Islander cultural heritage laws.
• Future act determinations have predominately been in favour of the future act being done.
• It is difficult for native title holders to obtain timely and accessible compensation for future acts.
• The regime is complex, and a lack of data and its centralised collection makes it difficult to assess how the future acts regime is operating.
• The current categories of future acts may not be fit for purpose for new and emerging industries, such as critical minerals and renewable energy.

Next steps: opportunity to provide feedback on issues impacting you

The ALRC's review presents a timely and significant opportunity to have a say in how the future acts regime can be reformed and improved. The full Issues Paper is available and stakeholders are encouraged to consider making a submission to the ALRC to share their views and experiences.

This stage of the review process provides an opportunity for stakeholders to put issues of concern 'on the table' for consideration during the review process.

If you would like to discuss any aspects of the inquiry, please get in touch with one of our team below.