Native title year in review 2025-2026
What you need to know
- The Full Federal Court in Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2026] FCAFC 7 (Yanunijarra) has confirmed that a government party's inclusion of an expedited procedure statement in a section 29 notice under the Native Title Act 1993 (Cth) is not open to judicial review.
- The Full Court held that including the statement is a procedural step that triggers statutory consequences. It is not a substantive decision about whether the act attracts the expedited procedure. Instead, native title parties can challenge the statement by objecting to the National Native Title Tribunal (NNTT).
- On 11 June 2026, the High Court granted special leave to appeal. The appeal gives the High Court its first opportunity to consider a line of authority that dates back to 2001.
What you need to do
- Native title parties should treat an objection to the NNTT within four months as the only way to challenge an expedited procedure statement. If no objection is lodged, the government party may do the act.
- Watch out for the High Court appeal. The Full Court warned that the appellants' approach could allow the validity of a grant to be challenged after the event, even where no objection was lodged.
Reminder: what is the expedited procedure?
The expedited procedure is a fast-track process for certain future acts otherwise attracting the right to negotiate (RTN) process in the Native Title Act (usually the grant of exploration tenements) that the relevant government party considers will have minimal impact on native title.
Under this process, the government party issues a notice that it considers that the expedited procedure applies and that, unless a registered claimant or prescribed body corporate objects within the notice period, the full RTN will not apply to the relevant grant.
If no objection is lodged within the notice period, the government and grantee party are not required to negotiate with native title parties about whether the grant may be done. However, if a native title party objects, the NNTT must determine whether the act does in fact attract the expedited procedure.
Where we left off
In our Native Title Year in Review 2024–2025 article, "Native Title Act's expedited procedure under challenge", we reported on Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2025] FCA 490. In that case, the Federal Court held that the State of Western Australia's decision to include an expedited procedure statement in a section 29 notice could not be judicially reviewed. The Court found that a native title party should instead lodge an objection with the NNTT under section 32 of the Native Title Act. This decision was not unexpected and confirmed a line of authority dating back to 2001.
The native title parties appealed. On 12 February 2026, the Full Federal Court dismissed the appeal. On 11 June 2026, the High Court granted special leave.
The appeal
The Yanunijarra appellants (three registered native title bodies corporate (RNTBCs) and the Kimberley Land Council) argued that section 29(7) of the Native Title Act requires a government party to consider and apply the criteria in section 237 before including an expedited procedure statement. Section 237 sets out when an act attracts the expedited procedure. In particular, the act must not be likely to interfere with areas or sites of particular significance.
The appellants argued that including the statement has apparent legal effect, because it switches off the normal negotiation procedure. If no objection is lodged, the government party can grant the tenement without negotiating. They also relied on the word "considers" in section 29(7) and argued that the RTN is a special measure, so any qualification on it should be construed narrowly. In their view, a statement included without that consideration would have no legal effect, and the NNTT would have no jurisdiction to determine an objection.
By the time of the appeal, the exploration licence applications which were the subject of the original notices had been withdrawn. The case continued because of a later notice that the native title parties had not objected to within the four-month period. That made the question squarely about whether a government party's decision can be challenged in court after the objection window has closed.
Full Court: a procedural step, not a substantive decision
The Full Court (Moshinsky, Sarah C Derrington and Hill JJ) dismissed the appeal. The Court accepted that a government party makes "a decision of some kind" when it includes the statement. However, the Court held at [62]:
A close analysis of the statutory scheme … demonstrates that the inclusion of an expedited procedure statement in a s 29 notice is a procedural step that triggers certain statutory consequences, and does not involve or depend on a substantive determination of whether the proposed act is one that attracts the expedited procedure.
The Court reached this view for three key reasons:
- section 29(7) uses the word "considers", while section 32(4) requires the NNTT to "determine" whether the act attracts the expedited procedure. This contrast shows that the substantive decision belongs to the NNTT;
- the related provisions depend on the fact that a notice "includes a statement", not on any opinion formed by the government party; and
- the appellants' construction would create two parallel avenues of review, one in the courts and one in the NNTT. That would cause fragmentation and uncertainty about whether future acts are valid.
The Court accepted that the RTN provisions constitute a special measure and that the expedited procedure represents a qualification on the right to negotiate but found this was of no "real assistance" in resolving the question.
For the same reasons, the Court held that the appellants could not obtain certiorari or declaratory relief under the general law. It left open whether an expedited procedure statement could ever be judicially reviewed under general law.
Each party was ordered to bear its own costs, because the appellants had not acted unreasonably and there was a public interest in resolving the issue at an appellate level.
High Court to have the final word
On 11 June 2026, the High Court granted the native title parties special leave to appeal. The appeal has not yet been heard.
With the Full Court describing the question as "an important issue of statutory construction" with "practical ramifications for the operation of the future act regime", the High Court's decision will settle whether a 25-year line of authority still stands.
ALRC recommends repealing the expedited procedure
The Australian Law Reform Commission's final report, Fulfilling the Promise of Mabo: Reforming the Future Acts Regime in the Native Title Act 1993 (Cth), recommends repealing the expedited procedure because it concluded that the procedure does not operate effectively, efficiently, or fairly. Instead, exploration would be treated the same way as other future acts. In the alternative, the Report recommends amendments including requiring consultation with native title parties and changes to the section 237 criteria.
The repeal of the expedited procedure would likely see the full RTN process applying to many exploration tenements. The costs and timeframes of this process may be prohibitive for many explorers.
Want to know more?
- Native Title Act's expedited procedure under challenge (9 September 2025)
- ALRC recommends sweeping changes to the Native Title Act (26 October 2026)
- Native Title Year in Review 2024-2025 (9 September 2025)
Authors: Tony Denholder, Partner and Ella Moore, Graduate.
