Native title year in review 2025-2026

What you need to know

• The Australian Law Reform Commission has released its final report, Fulfilling the Promise of Mabo: Reforming the Future Acts Regime in the Native Title Act 1993 (Cth).
• The Report recommends significant reforms. These include a new pathway to future act validity, replacing the current "batting order" regime with impact-based categories. It also recommends upfront "redress" compensation payments for future acts.
• The Report makes far-reaching recommendations about agreement-making, including the right to negotiate (RTN) process. It recommends repealing the expedited procedure (which is widely used to secure exploration tenure) and the current RTN exemption for mining tenure renewals.
• If implemented by the Commonwealth Government, these recommendations would affect all parties who need land access where native title exists: Government, mining, petroleum and gas, infrastructure providers, utility companies, and renewable project proponents.

What you need to do

• Stakeholders should remain engaged (including with their industry body) and monitor the Federal Government's response to the Report.
• Consider the impact of overlapping policy developments in the cultural heritage space, including the proposed National Environment Standard for First Nations Engagement under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and possible reforms to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

ALRC Report recommends major reform for the Native Title Act's future acts regime

The Australian Law Reform Commission's March 2026 report (Fulfilling the Promise of Mabo: Reforming the Future Acts Regime in the Native Title Act 1993 (Cth) (ALRC Report 144)) (Report) represents the first comprehensive review of the future acts regime in the Native Title Act 1993 (Cth) since the current regime was introduced by the post-Wik amendments to the Native Title Act in 1998.

Across more than 600 pages, the Report makes 86 recommendations that would radically transform the future acts regime nationwide if legislated by the Commonwealth.

The Report follows the May 2025 Discussion Paper and November 2024 Issues Paper, which we wrote about in our Native Title Year in Review 2024-2025 article, "Australian Law Reform Commission releases Discussion Paper in future acts regime inquiry". The Report responds to widespread calls for reform, including recommendations from the Joint Standing Committee on Northern Australia's A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge released in October 2021.

The recommendations respond to the Commission's overarching view that:

The future acts 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. That denial is in breach of Australia's international obligations; is out of alignment with s 10(1) of the Racial Discrimination Act 1975 (Cth); is contrary to the motivating rationale of the High Court's decisions in Mabo v Queensland (No 1) and Mabo v Queensland (No 2); and is out of accord with the intention of the NTA, as stated in the preamble (page 13 Summary Report).

Two key themes are reflected in the Report:

• application of the "equivalency principle", designed to ensure native title holders have equivalent rights to freeholders; and
• upfront "redress" or compensation, payable when future acts are done.

A new impact-based future acts regime

The Report's most far-reaching recommendation replaces the current future acts "batting order" with a new impact-based model. Under this approach, the process for validating future acts depends on their impact on native title rights and interests, not the type of act or underlying land tenure.

Five main categories are proposed, as set out below.

It is proposed that the Commonwealth Government would then make regulations to help determine a future act's category, following consultation and recommendations from the National Native Title Tribunal (NNTT). Relevant factors include major land disturbance or material impact on cultural rights.

The regulations could set conditions that the relevant State or Territory must impose on the grant of a future act to qualify as "assessed lower impact". Some conditions can be "validating", meaning that non-compliance leads to invalidity. Regulations can also require fair and just "redress" payments within a reasonable time.

Alternative proposal – reforms to existing "batting order"

The Report acknowledges that the Government may not wish to implement a full-scale replacement of the future acts regime, and therefore includes recommendations for less drastic changes to several future act pathways in the Native Title Act.

These changes would either repeal or limit existing future act pathways or enhance the procedural rights available to native title parties. Of particular note are the recommendations that: (1) the taking of large amounts of water should trigger the right to negotiate (RTN) process; and (2) Subdivision K (Facilities for services to the public) should be limited to facilities that are "an essential service, or to facilitate the delivery of an essential service, to the general public".

New pathway to future acts validity: Native Title Plans

The Commission originally proposed Native Title Management Plans as a new pathway to enable future acts. Under this model, a PBC could develop a plan for its determination areas, setting out alternative procedures for validating future acts tailored to local circumstances.

The Commission has scaled back this proposal after submissions questioned its workability. Now called "Native Title Plans", they must go through NNTT registration and remain voluntary unless the relevant State or Territory agrees.

Reforms related to agreement-making, including the right to negotiate process

The Report recommends significantly overhauling the RTN process by expanding the types of future acts that trigger it and changing how it works. The table below summarises the major recommendations.

Where parties cannot reach agreement and the matter goes to arbitration, the Report recommends significant changes:

• The NNTT can determine financial conditions, including benefit-sharing conditions. This is a major change from the current system, where such conditions are precluded in section 38(2) of the Native Title Act.
• The NNTT must not determine that the future act can be done without the native title parties' agreement unless it is satisfied that the environmental, economic, social, or cultural impact of the act on the list of factors will be addressed by a condition placed on the determination that fairly and justly (within a reasonable time) provides "redress" and "mitigation". This represents a change in the practical evidentiary burden – the NNTT must be satisfied of these things or cannot make a determination. Currently, the NNTT simply has a list of matters to consider and no requirement for some to be weighed more heavily than others.
• Currently, section 39 includes consideration of the economic or other significance to Australia, the State or Territory and local area plus the public interest and "any other matter". These are replaced with a requirement to consider the "just and compelling requirements of the nation". This is a remarkably high bar.
• If the NNTT determines that a future act cannot be done, there will be a five-year moratorium on the grant of substantially similar future acts in the same location (without first obtaining leave of the NNTT).

The Report recommends the following for all future act agreements:

Expedited procedure – repeal or amend

The Report recommends repealing the expedited procedure because it concluded that the procedure does not operate effectively, efficiently, or fairly. Instead, exploration would fall under the recommended impact-based scheme.

The Report rejects the assumption that exploration has low impact. Exploration activities vary materially depending on disturbance, location, vegetation clearing, and proximity to cultural sites, watercourses, and communities. If the regulations categorise exploration as "higher impact", the RTN would apply.

If the expedited procedure remains, the Report recommends amendments including requiring consultation with native title parties and changes to the section 237 criteria.

Renewals – no longer excluded from the RTN

The Report recommends repealing section 26(1) of the Native Title Act so that mining tenure renewals are no longer excluded from the RTN. The Report says that the current system enables serious and ongoing infringements of native title rights and interests and is discriminatory because ordinary title holders would have consent rights or other procedural protections for renewals.

The Report recommends that the "equivalency principle" apply to renewals. Native title parties' procedural rights would be no less favourable than those afforded to ordinary title holders. Where an agreement validating the original grant (such as an Indigenous Land Use Agreement (ILUA) or section 31 agreement) provides for renewal, no procedural rights would apply. Without such an agreement, the renewal would be subject to the Native Title Act like a new grant. For mining, this means the RTN or an ILUA, with no guarantee of renewal.

Upfront compensation or "redress"

The Native Title Act currently provides for compensation for any loss, diminution, impairment, or other effect on native title rights and interests. The Report notes that compensation is retrospective, assessed by reference to effects on those rights. It says that for the vast majority of future acts validated over the last 32 years, native title holders have not received a single dollar in compensation (note: the Report was finalised before the Yindjibarndi decision).

"Redress" is not currently used in the Native Title Act but features prominently in the Report. The Commission defines "redress" as remediation for adverse impacts on Indigenous Peoples' lands, territories, or resources. It includes benefit-sharing. The Commission says benefit-sharing and remedies are distinct: Indigenous Peoples have an entitlement to share in benefits from activities on their traditional territories, separate from any compensation entitlement for damages. For "redress" to be effective, it must be timely – provided within a reasonable time of the adverse effects being experienced.

This is reflected in the Report's recommendations in the following ways:

• Timely redress: NNTT can determine conditions that apply to a limited impact or low impact future act providing "timely, fair, and just redress" for the adverse effect of a future act.
• Upfront payment: NNTT would set upfront redress conditions for limited impact and low impact future acts. Part 2 Division 5 compensation applications would remain available to adjust the extent of upfront redress.
• Validity and enforcement: The conditions would attach to the future act and be enforceable against the proponent or government party doing the act.
• Pass through: Enable pass-through for all future acts, with residual government liability where recovery from the proponent is not reasonably practicable.

Statutory obligations, compliance, and enforcement

The Report recommends measures to address gaps in compliance and enforcement, as follows:

• Express statutory obligations: each procedural right and entitlement has a corresponding obligation. Non-compliance with obligations will be subject to the recommended new civil remedy regime.
• Invalidity: a future act will be invalid if there is failure to comply with certain statutory procedures or a "validating" condition and can also be declared invalid in some circumstances.
• Civil enforcement regime: designed to address non-compliance with Native Title Act obligations. Remedial and compliance powers would include injunctive relief on an interlocutory or final basis, declarations that a future act has been done invalidly, orders rectifying invalidity, compensation awards, and pecuniary penalties. The civil remedy regime would apply to the enforcement of the procedural rights of the future acts regime, conditions in regulations relating to the categorisation of future acts under the impact-based scheme, conditions placed upon the doing of a future act by a determination of an arbitral body, entitlements and obligations in future act agreements, and determinations made pursuant to a dispute resolution clause in a future act agreement.

Insights and next steps

These recommendations, if implemented, would affect all parties – Government, mining, petroleum and gas sectors, infrastructure providers, utility companies, and renewable project proponents – who require access to land where native title exists.

The recommended replacement of the existing "batting order" with an impact-based regime could create unworkable complexity and uncertainty about the categorisation of future acts, leading to delays, legal challenges, and increased costs.

Several recommendations that will particularly affect the energy and resources industry, including the repeal of the expedited procedure, the removal of the existing protection for renewals and the additional requirements for the RTN process. These changes would substantially increase native title parties' bargaining power and heavily promote agreement-making.

Even on the alternative model, the additional consultation requirements and expanded application of the right to negotiate process would have a major impact on state and local government development, public infrastructure, and primary production future acts. By contrast, the impact on major energy and resources projects (which already commonly reach agreements with native title holders) is likely to be less significant.

The Commonwealth has committed to "consider the report's 86 recommendations and … to working with First Nations communities and key sectors". To date, the Commonwealth has not responded to the recommendations in the Report; this will be an area to monitor. Native Title Act reform presents significant complexity given the range of stakeholders and the need to balance diverse interests. The Government must consider the Commission's recommendations alongside other concurrent reforms, including the proposed National Environment Standard for First Nations Engagement under the reformed Environment Protection and Biodiversity Conservation Act 1999 (Cth) and possible amendments to the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The timing and scope of any Native Title Act reform will depend on the Government's broader legislative priorities.

Stakeholders should remain engaged (including with their industry body) and monitor the Federal Government's response to the Report.

Want to know more?

• Australian Law Reform Commission releases Discussion Paper in future acts regime inquiry (9 September 2025)
  
• Native Title Year in Review 2024-2025 (9 September 2025)

Authors: Tony Denholder, Partner and Leonie Flynn, Expertise Counsel.