Australian Law Reform Commission proposes overhaul of the Future Acts Regime

This month, the Australian Law Reform Commission (ALRC) released its Discussion Paper on its review of the ‘future acts regime’ (Regime) in the Native Title Act 1993 (Cth) (NT Act). This Discussion Paper marks the third stage in the ALRC’s review process and includes 18 draft reform proposals (referred to as ‘Proposals’) and 23 questions intended to elicit feedback from stakeholders (referred to as ‘Questions’). The paper is informed by stakeholder submissions received in response to the ALRC’s ‘Issues Paper’ released in November 2024. Key concerns raised by stakeholders included the Regime’s complexity, inadequate resourcing and capability (including for PBCs and smaller proponents) and a native title party concerns regarding a systemic imbalance of power in negotiations.

This Discussion Paper centres around the following key changes to the Regime:

1. ‘Native Title Management Plans’ (NTMPs) as a new pathway for future acts validity;
2. Replacing the existing categories of future acts currently in the NT Act with an impact-based model for determining procedural requirements;
3. Removal of the expedited procedure, including a proposal to amend the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) (PBC Regulations) to permit native title holders to give standing instructions to PBCs to enter into ‘exploration ILUAs’ to validate certain future acts;
4. Reforms aimed at improving the agreement-making processes; and
5. Improving resourcing for Prescribed Bodies Corporate (PBCs).

Native Title Management Plans

The Discussion Paper introduces Native Title Management Plans (NTMPs) as a mechanism designed to operate alongside Indigenous Land Use Agreements (ILUAs) and generally applicable statutory procedures, as an alternative pathway for validating future acts. Stakeholder feedback suggests that better outcomes are achieved through specific or tailored future acts processes like ILUAs which facilitate customised agreements between native title holders, government parties and proponents. That is, the relevant native title holders’ views and regional or jurisdictional differences are taken into account in the agreement making process. NTMPs are intended to have similar characteristics and would allow PBCs to proactively develop these NTMPs for their determination areas, subject to the consent of the common law holders and registration with the National Native Title Tribunal (NNTT).

It is intended that the NTMPs would establish clear expectations around procedural elements such as how and when native title holders must be notified of future acts, identification of sites or areas where consent is to be withheld for specific acts and specifying minimum payments or formulas for payments to native title parties. To that end, the ALRC considers that the NTMPs would provide a proactive framework for future act validation, and in doing so, offer proponents and government parties greater upfront clarity and procedural certainty.

What is not clear is how native title holders will proactively introduce NTMPs (noting this is likely to be dependent on funding availability and resourcing – see ‘Improving Resourcing for PBCs’ below).

Impact-based model for future acts

This Discussion Paper proposes replacing the current categorisation of future acts under Part 2 Division 3 Subdivisions G–N of the NT Act with an impact-based model. Under this approach, future acts would be categorised based on their likely impact on native title rights and interests. The aim is to ensure that procedural obligations imposed on proponents are proportionate to each future act, thus making compliance with the NT Act more consistent and adaptable. To support this shift, the Discussion Paper recommends the development of national guidelines to help parties assess the impact of future acts on native titles rights and interests.

The broad removal of these Subdivisions should be considered by land users for its effect on future acts or renewals in the future and whether an ‘impact-based model’ may be appropriate. These Subdivisions address, among other things, the management of water and airspace, permissible lease renewals (including diversification permits), road reserves and facilities for services to the public.

The Discussion Paper provides examples of how the impact-based model might work for future acts. For example, it is envisaged that a low-impact exploration licence (which includes rights to conduct aerial surveys, sampling by hand methods geological and surveying field work but not clearing or extraction) would be treated as a ‘low impact’ Category A activity which would attract the “Right to Consult”. By contrast, the grant of multiple exploration licences over a contiguous area, that would permit clearing of vegetation, drilling and excavation by machinery, would be a Category B activity which would attract the “Right to Negotiate”.

Removal of expedited procedure

The Discussion Paper proposes the repeal of section 32 of the NT Act which provides for the expedited procedure. By way of background, where a government party is proposing to grant exploration or prospecting tenure, which is a future act, it may issue a section 29 notice which includes a statement that the government party considers the future act is an act attracting the expedited procedure under s 237 of the NT Act (that is, the act is not likely to interfere directly with the carrying on of the community or social activities of the native title holders, with areas or sites of particular significance, or involve major disturbance to land or waters). The expedited procedure is intended to be a fast-tracking process for future acts that the government party responsible for the act considers will have minimal impact on native title. The process itself differs across jurisdictions. If the expedited procedure applies to the future act, then the right to negotiate procedure will not apply.

Native title parties have an opportunity to lodge an objection to the expedited procedure applying to the proposed grant of the exploration or prospecting tenure (within 4 months of being notified), and typically such objections are resolved by the applicant and the native title party entering into an agreement. In some jurisdictions, exploration tenure is granted subject to native title protection conditions, which generally requires that the explorer must not carry out activities which are likely to interfere directly with the carrying on of the community or social activities of the native title holders, interfere with areas or sites of particular significance, or involve major disturbance to land or waters.

The Discussion Paper notes that submissions made by stakeholders generally provided that the expedited procedure does not operate effectively, efficiently or fairly, and that the process is far from ‘expedited’. Key submissions included:

1. that the expedited process is adversarial and provided a poor platform for relationship-building between the proponent and the native title party;
2. native title parties are inadequately resourced and do not have the capacity to efficiently assess each application for exploration and prospecting tenure;
3. if an objection is lodged by the native title party, then it is the native title party that is required to bear the burden of proving why the expedited procedure should not apply (rather than the government party establishing why it should); and
4. native title parties are required to give extensive and detailed evidence in support of a native title objection.

The Discussion Paper proposes that future acts that are currently subject to the expedited procedure would instead be subject to either:

1. an exploration ILUA;
2. the process set out in an NTMP; or
3. the statutory procedures for an impact-based model.

The exploration ILUA may be a template exploration agreement (similar to template agreements that are currently used to deal with cultural heritage matters) that each native party can develop. It is envisaged that PBCs could, following amendments to the PBC Regulations, be given greater decision-making powers to enter into such ILUAs, where standing instructions are provided by native title holders.

The Discussion Paper suggests the introduction of the impact-based model would address concerns about the expedited procedure applying to future acts that have a significant impact on native title rights and interests as it would require a case-by-case assessment of the actual impact of proposed future acts, and whether the right to consult or right to negotiate process would be invoked.

Improving the agreement making process

The Discussion Paper also proposes a series of reforms to improve the agreement-making process by levelling the playing field between native title holders and proponents and by enhancing efficiency and transparency.

Conduct and content standards

The Discussion Paper asks whether the NT Act should expressly set out mandatory standards for negotiation conduct and agreement content, including restrictions on exploitative clauses (e.g. gag clauses). It also explores the introduction of mechanisms to regulate ancillary agreements and agreements made with native title parties prior to a native title determination being made.

Transparency and efficiency measures

With a view to improve transparency, the ALRC asks whether establishing an opt-in public register of native title agreements would be appropriate on the basis that increased access to agreement information could support more informed negotiations and decisions making. However, this would also raise confidentiality concerns that would need to be carefully managed.

Further, to improve efficiency, the ALRC proposes the implementation of an arbitration function within the NNTT, to enable parties to resolve disputes within a lower-cost jurisdiction and one that has the relevant subject matter expertise.

The ALRC also raises the question of whether there should be greater flexibility in amending ILUAs to accommodate new information or shifting priorities without requiring full re-registration. Currently, amendments without re-registration are only permitted for minor change (e.g. updating party details).

Improving Resourcing for PBCs

Stakeholder feedback suggests that the current inadequacy of resourcing – for both native title parties and smaller proponents – is one of the main barriers to effective engagement with the Regime. To counteract this, the ALRC proposes the introduction of an independent perpetual capital fund to provide funding for core operations of the PBCs, and increased funding to the NNTT. The idea is that improvements in the resourcing available to PBCs and the NNTT may lead to broader efficiencies and, in turn, reduced costs across the Regime (including for project proponents).

Amendments to the NT Act to provide more effective ways for native title parties to recover costs incurred for negotiations under the future act regime have also been proposed by the ALRC.

Next steps

Submissions on this Discussion Paper are due on 10 July 2025, and a Final Report is expected to be released in early December 2025.