Rules of engagement, and obligations, could be changing 8 min read
Fulfilling the Promise of Mabo: Reforming the Future Acts Regime in the Native Title Act 1993 (Cth) (the Final Report) was tabled in the Federal Parliament and published on 24 June 2026. Its recommended reforms, if implemented, would amount to a wholesale rewrite of the future act regime. This would materially change how proponents and native title parties engage regarding many future acts, and the obligations that proponents and governments need to satisfy to obtain approvals for projects and activities.
In this Insight, we outline the Final Report’s key recommendations and the implications for proponents and governments.
Key takeaways
- The Australian Law Reform Commission (the ALRC) has concluded that the existing future act regime in the Native Title Act 1993 (Cth) (the NT Act) 'generally fails' to provide native title holders and native title claimants with two 'fundamental protections', being procedural rights and substantive rights, and thus 'is not only unfair and inequitable but key aspects of it are also discriminatory because they deny to native title holders equality before the law'.
- Many of the ALRC's recommended amendments therefore aim to increase the procedural and substantive rights of native title holders and native title claimants.
- The ALRC also concluded that the current future act regime pathways are inefficient, costly, rigid, complex and ambiguous, and its recommendations attempt to address this—but there is the potential for some future acts to be subject to longer and more onerous future act processes.
- The Final Report makes 86 recommendations to reform the future act regime, including a proposal to replace the existing 'statutory procedures' in Subdivisions G to N of the future act regime, which specify future act processes that apply based on the type of activity, approval or tenure in question, with an 'impact-based scheme'.
The Final Report—an overview
The ALRC commenced its inquiry into the future act regime under the NT Act in June 2024. Its Final Report clocks in at over 600 pages and was published together with an 80+ page summary report.
A future act normally takes the form of the grant of an approval or new rights to undertake an activity (eg the grant of a mining tenement or land tenure), or the construction of public works (eg public roads, dams, powerlines), in an area that is inconsistent with the continued enjoyment and exercise of native title rights in that area. Any future act must comply with the NT Act's requirements.
The ALRC concludes the existing future act regime 'is not only unfair and inequitable but key aspects of it are also discriminatory because they deny to native title holders equality before the law' (our emphasis). This conclusion is based on the ALRC's finding that the future act regime 'generally fails' to ensure that native title holders are provided with two 'fundamental protections', being procedural rights (ie a reasonable opportunity to meaningfully participate in, and influence, a decision-making process) and substantive rights (ie 'an entitlement to effective, timely, fair, and just redress or compensation for any harm or injury caused by the infringement'), when future acts impact on their native title rights and interests.
As a result of this general conclusion, many of the recommended amendments to the future act regime are directed towards increasing the procedural and substantive rights of native title holders and native title claimants.
The ALRC also concluded that the current future act regime pathways are, to varying degrees, inefficient, costly, rigid, complex and ambiguous, and its recommendations attempt to address these shortcomings. For proponents and governments undertaking future acts, whether the recommendations would deliver that may be a matter of perspective, and may vary from case to case. There is a degree of inherent trade-off between strengthening native title holders' procedural and substantive rights and striving for processes that are more efficient. In many instances, this will turn on the detail of the 'impact-based' approach the ALRC recommendations argue for, and how a particular type of future act might be categorised under this new proposed scheme (which is yet to be determined under the proposed scheme). While some future acts could potentially be subject to a more efficient process, there is also potential under the recommendations for other future acts to be subject to longer and more onerous future act processes. A readily apparent example of that is the recommend extension of the 'right to negotiate' (RTN) process from the current minimum six-month timeframe to a 12-month timeframe.
Key recommendations
Below is our summary of some of the ALRC's key recommendations:
Replacement of most existing validating pathways with an impact-based scheme
Arguably, the most significant reform the ALRC proposes is the replacement of the existing 'statutory procedures' in Subdivisions G to N of the future act regime (each of which is a validating pathway that may apply without a requirement to negotiate an Indigenous Land Use Agreement (ILUA)) with an 'impact-based scheme'. The NT Act currently has specific future act processes that apply based on the type of activity, approval or tenure in question—eg s24KA of the NT Act is a relatively efficient process regularly relied on in relation to constructing a range of public infrastructure. The ALRC proposes instead to group 'future acts' from Group A (for acts with the lowest impacts) to Group D (for acts with the highest impacts), based on the act's impact on native title rights, calibrating procedural rights in a manner that is proportionate to the impact. In broad terms, lower-impact acts would be expected to follow a 'streamlined' notification and comment or consultation process, while higher-impact acts would be subject to more extensive procedural requirements, including a RTN process. There would also remain a 'Group E', which is not strictly impact assessment based but would ensure native title holders are afforded the same rights as a holder of freehold would enjoy for certain future acts (and would include most legislative acts and compulsory acquisition for government purposes). Notably, the ALRC recommendations generally do not seek to classify certain types of future acts into the relevant impact categories—the proposal is that it would be left for the National Native Title Tribunal (the NNTT) to decide on a 'category and sub-category' basis which future acts would be classified as lower-impact Category A and B acts, and would undertake this process by inviting interested persons to make submissions to the NNTT. The ALRC argues that one advantage of the proposed impact assessment scheme is that it is more flexible in accommodating emerging industries; it cites the example of the renewables sector that, in some cases, currently only has an option of negotiating an ILUA to satisfy its NT Act obligations, but may be afforded other alternatives under an impact-based scheme.
Minimum content standards for 'future act agreements'
The ALRC proposes minimum content standards for 'future act agreements' (eg ILUAs, section 31 agreements, ancillary agreements and other agreements negotiated in the context of the future act regime) with the stated goal of addressing unconscionable effects that may arise from inequality in bargaining positions, and better aligning 'future act agreements' with the regime's objectives. The ALRC report recognises that, to a degree, these minimum content requirements cut across parties' freedom to contract, but considers that is justified to ensure native title parties have adequate protection in agreement negotiations. The proposed minimum content for 'future act agreements' includes prohibitions on certain types of 'gag clauses' and clauses that restrict how native title parties administer or manage payments they receive, as well as mandated clauses for dispute resolution and periodic review of agreements. The ALRC also proposes minimum conduct standards for negotiations for 'future act agreements' of all types, which, to some extent, aligns with the current 'good faith' obligation that currently applies only in respect of s31 (RTN) agreement negotiations. There are proposed exemptions in many instances for existing agreements.
Benefit sharing
The ALRC recommendations seek to embed benefit sharing as a feature of the future act regime, rather than something that can only be obtained through a negotiated outcome. In particular, the ALRC recommends that the NNTT be able to impose financial conditions when making a future act determination by having regard to the future act's benefits (eg the revenues or profits that project might derive). This is substantially different from a compensation assessment that is based on the loss a native title party may suffer due to the impacts on their native title rights that the future act causes. If implemented, this could therefore give rise to the NNTT determining significant payment entitlements in favour of native title holders, in circumstances where negotiations did not result in a 'future act agreement'.
RTN
The RTN is an existing feature of a future act process most commonly applied to the grant of production leases/licences in the resources sector—eg the grant of a mining lease or petroleum lease. However, it has potential wider application, and can also apply to the compulsory acquisition of native title in some cases. The ALRC recommends retaining the RTN process but making a number of amendments to it, including extending the minimum negotiation timeframe from six to 12 months; strengthening the obligations of a proponent to negotiate in good faith and the consequences if they do not do so; and significantly amending the criteria that the NNTT must have regard to when deciding whether to approve the grant of a future act in the absence of an agreement, while also raising the bar for the threshold test that must be met for the NNTT to approve a future act. Coupled with the proposed benefit sharing amendments, these proposals substantially change the dynamics of the RTN process and the balance between the parties' negotiating positions—something the ALRC considers necessary to create a process that supports fair negotiations.
Repeal of the expedited procedure
The ALRC recommends abolishing the 'expedited procedure' (which is often used in the resources sector for grant of exploration tenure) entirely on the grounds that it is inefficient and in practice 'not truly expedited', unduly burdensome on native title parties, applied inconsistently across jurisdictions and constitutes a significant portion of the NNTT's workload. If the impact-based scheme described above is implemented, the ALRC considers it would render the expedited procedure redundant.
'Native Title Plans' (NTPs)
The ALRC recommends the introduction of NTPs as a new mechanism under the future act regime that would provide an alternative or different pathway for future acts. It believes that NTPs may expedite future act process for proponents and provide a more informed starting point for engagement with the relevant native title holders. NTPs are proposed to be developed in areas where native title has been determined by the Federal Court to exist and would be prepared by the relevant Prescribed Body Corporate and authorised by the relevant native title holders. A NTP would set out applicable processes for the validation of future acts in that area, and may also address matters that do not relate to future act validity (eg preferred cultural heritage management process) in a non-binding manner.
Next steps
The ALRC undertook its inquiry into the NT Act's future act provisions at the Federal Government's request. The Final Report has been provided to the Government for its consideration, and it is now for Parliament to determine which recommendations will be adopted and enacted to amend the NT Act. Unless and until that is done, the NT Act will continue to apply in its current form. If you have any questions about the issues raised in this Insight, please get in touch with our team.