Upcoming review of the future acts regime under the Native Title Act

On 4 June 2024, Commonwealth Attorney-General Mark Dreyfus announced that the Australian Law Reform Commission (ALRC) will review the future acts regime in the Native Title Act 1993 (Cth) (Native Title Act). Out of the $2.4 billion allocated by the Federal Budget specifically for Aboriginal and Torres Strait Islanders, $500,000 has been allocated over the next two years to complete the review.

What is the current future acts regime?

The future acts regime sets out a process for validating acts (referred to as ‘future acts’) that affect native title rights and interests. Future acts include both physical and non-physical activities such as the grant of interests in land or the construction of works. A future act will be valid if it is covered by Part 2, Division 3 of the Native Title Act.

Native title parties have certain procedural rights in respect of future acts under the Native Title Act. These rights may include a right to be notified, a right to comment or to negotiate, depending on the type of future act.

Why is the review needed?

In recent years, questions have been raised by some parties about how well the future acts regime safeguards the interests of Traditional Owners.

The impetus for the review was the destruction of Juukan Gorge in the Pilbara region of Western Australia. Following the publication of the Joint Standing Committee on Northern Australia’s report on the incident, ‘A Way Forward’ (Report), the Federal Government committed to reform the national cultural heritage protection legislative framework.

The Terms of Reference state that the ALRC is to consider the socio-economic outcomes and priority reforms outlined in the National Agreement on Closing the Gap and will review ongoing efforts to implement the recommendations from the Report.

The document also outlines that the ALRC has been tasked with considering:

• the current operation of the future acts regime, including Indigenous land use agreements(ILUAs), and related parts of the Native Title Act, with the aim of rectifying any inefficacy, inequality or unfairness
• options for efficiencies in the future acts regime to reduce the time and cost of compliance for all parties
• options to support native title groups, project proponents and governments to share in the benefits of development on native title land, including opportunities for native title groups to lead or co-lead development, and for ensuring native title groups receive commensurate and timely compensation for the diminution of native title rights and interests caused by future acts
• options for how the future acts regime can support fair negotiations and encourage proponents and native title groups to work collaboratively in relation to future acts
• the different levels of procedural rights of native title groups in relation to different types of future acts and whether these are appropriately aligned with the impacts on native title rights and interests
• whether the Native Title Act appropriately provides for new and emerging industries engaging in future acts
• the National Native Title Tribunal’s role in relation to future acts
• how the rights in the future acts regime compare with other land rights regimes.

The ALRC is expected to deliver its final report to the Attorney-General by 8 December 2025.

Next steps

The Commonwealth Attorney-General has directed the ALRC to identify and consult key users of the native title system, including native title holders, future acts proponents, relevant government departments and agencies and other non-government stakeholders as part of its inquiry.

The ALRC has announced that it will publish a background paper in late 2024, followed by a consultation paper in 2025 explaining the ideas for reform and inviting formal submissions in response.

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Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Jenny Humphris

Anneliese Castle, Laura Guise

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