On 22nd May, the Australian Law Reform Commission published its discussion paper Review of the Future Acts Regime. It proposes various reforms to the Native Title Act's 'future acts regime', which sets out the legal framework for acts which affect native title (typically the grant of an interest in land).
A key reform proposed is to shift the current future act regime to an impact-based model, with obligations to consult with native title holders applying to low impact future acts.
But would this give rise to more issues than it resolves?
The problem
Currently, the Native Title Act requires varying levels of engagement between native title holders and proponents (those seeking the grant of an interest), depending on how the future act is categorised. For example, native title holders have a 'right to negotiate' about some future acts, and only a 'right to be notified' or a 'right to comment' about others.
But the categories don't necessarily align with the level of impact of the particular future act on the particular native title involved. For example, many PBCs (the corporations which hold or manage determined native title) contrast their limited 'right to comment' about the grant of a licence to take groundwater, with the potentially significant impacts changes to water flow can have on the exercise of native title rights, including rights to protect sites.
At the other end of the spectrum, some non-ground disturbing future acts – such as the grant of apiary permits or licences to access land for feasibility studies – don't fall within an existing category so require compulsory acquisition (clearly inappropriate) or an indigenous land use agreement (too resource intensive).
The proposed solution
The ALRC's solution is to divide all future acts into two categories – low impact and high impact. They suggest a 'right to be consulted' about low impact future acts. A new version of the 'right to negotiate' would apply to high impact future acts.
The new 'right to be consulted' is an important change because true consultation requires real engagement, as opposed to the more transactional nature of a 'right to comment'. It involves a two-way conversation, sharing of information and where possible adaptation of the proposal to accommodate the concerns raised, or agreement on other steps to manage and mitigate the impacts. This may involve making a formal agreement, but that is not strictly necessary.
The challenge of resourcing consultation
Having worked in native title for more than 20 years, I have seen first-hand the benefits real engagement can deliver to both native title holders and proponents. It can also generate creative solutions to issues which at first seem impenetrable.
But I'm also conscious that where I've seen it work well has typically been in the context of a 'right to negotiate' negotiation. I suspect this is because meaningful consultation takes time and can give rise to substantial costs (including because neither traditional owners nor other skilled and experienced personnel will contribute their time for free).
Unless significant Government funding is provided for PBCs to respond to proposed to future acts, PBCs will continue to seek to recover both costs of engagement and contributions to their operating costs from developers. Bigger project developers may be able to absorb this, but that is not true for all. So, could this change have the effect of supporting market dominance by fewer, bigger companies?
The challenge of determining impact
Another potential issue is uncertainty about how the relevant Government will determine whether any particular future act is low or high impact, which may discourage investment.
Guidelines are proposed to provide additional certainty, but the ALRC's paper mentions a complex matrix of factors including the level and extent of physical impact, the purpose of the future act and whether it affects a site or area of cultural sensitivity. So, there may be a risk of the same issues we saw with the Aboriginal Cultural Heritage Act 2021 (WA), where a well-intentioned attempt to provide certainty across a myriad of possibilities resulted in an overly complex and unwieldy system.
Yet if the legislation is less prescriptive, surely a resource-poor PBC aiming to protect the interests of native title holders will object to all 'right to be consulted' categorisations in favour or the more fulsome 'right to negotiate', withdrawing its objections only once agreement is reached. This may not work any better – or much different – to the way the current expedited procedure works for the grant of exploration licences in WA.
The way forward
There won't be a perfect answer, but one idea is to land somewhere between the current system and what is proposed – retain the expedited procedure, revisit some of the existing categories and add new 'catch all' categories for low and high impact future acts (requiring consultation and negotiation respectively).
If you would like to discuss these reforms – or any other native title matters - please reach out to me and the DLA Piper indigenous engagement team.
The ALRC's proposals are open for consultation to 10 July 2025.
