Native title year in review 2024-2025

What you need to know

• The Australian Law Reform Commission released its Discussion Paper: Review of the Future Acts Regime in May 2025 seeking feedback on proposed reforms to the future acts regime in the Native Title Act 1993 (Cth).
• The Discussion Paper suggests a range of significant reforms, including a new pathway to future act validity, which replaces the current 'batting order' regime with an impact-based categorisation of future acts. Furthermore, native title holders could develop native title management plans to replace the future acts legislative regime in their determination area.
• The Discussion Paper includes far-reaching proposals relating to all aspects of agreement-making. In relation to the right to negotiate (RTN) process, these include: an expanded 18-month RTN process; a right for native title parties to object to future acts on their Country; a five-year moratorium on the grant of similar future acts if an objection if upheld; and a right for the National Native Title Tribunal (NNTT) to impose conditions relating to the payment of consideration (including royalties). It also proposes the removal of the expedited procedure, which is widely used in the mining sector to secure the grant of exploration tenure.
• The proposals, if adopted, 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.

What you need to do

• Submissions on the Discussion Paper have already closed. The Commission is due to publish its final report in December 2025.
• Stakeholders should remain engaged (including with their industry body) and monitor the progress of these reforms. If enacted, some of these reforms would provide native title parties with significantly greater rights than ordinary title holders facing future acts on their land.

Discussion Paper proposes major reform for the future acts regime

The Australian Law Reform Commission's inquiry marks the first comprehensive review of the future acts regime introduced in the post-Wik amendments to the Native Title Act in the late 1990s.

The Discussion Paper responds to widespread calls for reform, including recommendations from the A Way Forward report in October 2021 (see our Native Title Year in Review 2021-2022 article, "Modernisation of cultural heritage protection legislation begins"). We wrote about the Terms of Reference for the Commission's inquiry in our Native Tile Year in Review 2024-25 article, "Other matters to watch out for in 2024-2025".

The Discussion Paper builds on submissions received following the Issues Paper released in November 2024 and contains a suite of proposed. A summary of the key proposals is below.

A new impact-based future acts regime

Perhaps the most far-reaching proposal in the Discussion Paper is the replacement of the current future acts 'batting order' with a new impact-based model. Under this approach, the process required to enable the valid grant of future acts would be determined according to their likely impact on native title rights and interests, rather than by the type of act or underlying land tenure.

Two main categories are proposed:

• Category A (lower impact), which would attract a right to consultation; and
• Category B (higher impact), which would attract a right to negotiate.

National guidelines would be developed to assist in assessing impact, considering factors such as the nature, scale, duration, and location of the act, and whether it forms part of a larger project. Native title parties would have a right to challenge the categorisation of a future act before the NNTT.

This shift purports to simplify the regime and ensure that procedural rights are proportionate to the real-world effects of proposed activities.

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

The Discussion Paper proposes several changes to the RTN process, including:

• introducing a new right for native title parties to withhold consent and object to a proposed future act within six months of notification, suspending the negotiation process;
• if an objection is made, it would be heard by the NNTT, which would apply a new or revised test to decide whether the act can proceed;
• if negotiations proceed, there would be mandatory conduct and content standards for agreements;
• if agreement is not reached after 18 months, allowing the NNTT to determine the conditions on which the act may proceed, including conditions about financial consideration (including royalties); and
• imposing a five-year moratorium on the grant of substantially similar future acts in the same location if the Tribunal upholds an objection and determines that a future act cannot be done .

In addition, the Discussion Paper canvasses the other changes to support all types of agreement-making, including:

• improved resourcing for Prescribed Bodies Corporate (PBCs) through establishing a perpetual capital fund to provide core funding for PBCs, expanded cost recovery rights;
• increased funding and support for the NNTT and Native Title Representative Bodies/Service Providers;
• the introduction of mandatory conduct and content standards for agreements;
• the expanded use of standing instructions;
• improved access to and assignment of agreements, enhanced transparency and additional dispute resolution mechanisms;
• proposals for timely and accessible compensation, including the introduction of 'future act payments' and a statutory entitlement to compensation for invalid future acts; and
• expanded powers and resources for the NNTT to provide facilitation, mediation, and binding determinations, as well as to maintain a central register of future act notices and agreements.

The Discussion Paper also proposes the repeal of the expedited procedure on the grounds that it is not operating effectively, efficiently or fairly. It suggests that future acts currently subject to the expedited procedure (commonly exploration tenements) could be subject to exploration ILUAs, Native Title Management Plans (see below) or one of the proposed new impact-based model referred to above. This would see many exploration tenements subject to the RTN process.

New pathway to future acts validity: Native Title Management Plans

A centrepiece of the Commission’s proposals is the introduction of Native Title Management Plans (NTMPs) as a new pathway to future acts validity. Under this model, PBC could develop NTMPs for their determination areas, subject to registration by the NNTT.

These plans would set out alternative procedures for validating future acts, such as notification, consultation and payment requirements, tailored to local circumstances. NTMPs would only be available after a positive native title determination and would operate alongside Indigenous Land Use Agreements (ILUAs) and statutory future act procedures.

Where a registered NTMP applies, compliance with its procedures would be sufficient for a future act to be valid, and the usual statutory future act procedures under the Native Title Act would not apply to the extent covered by the NTMP. An ILUA, if in place, would take precedence over an NTMP.

NTMPs are intended to provide native title holders with greater control over activities on their land, promote early and meaningful engagement with proponents, and potentially streamline processes for both native title parties and project proponents. The Commission also suggests that NTMPs could be used for broader functions, such as signalling development opportunities and aspirations for collaboration, and may eventually be integrated with cultural heritage management requirements.

Next steps

Submissions on the Discussion Paper closed on 10 July 2025. The Commission is due to publish its final report in December 2025.

These proposals represent only interim recommendations from the Commission. Whether they are included in the Commission’s final report and, crucially, whether the Federal Government ultimately implements some or all of them, remains to be seen. Stakeholders should remain engaged and closely monitor developments as the process unfolds.

Alignment with Government commitments: Garma Festival announcement

Echoing the Commission’s recommendations, Prime Minister Anthony Albanese announced at the Garma Festival in August 2025 a new First Nations Economic Partnership between the First Nations Economic Empowerment Alliance, the Coalition of Aboriginal and Torres Strait Islander Community Controlled Peak Organisations and the Federal Government (Address to Garma Festival, 2 August 2025). One of the immediate priorities of the partnership is to reform the funding model for PBCs, ensuring meaningful participation and timely decision-making. The Prime Minister pledged $75 million in additional Government funding to support Native Title Holders to secure better agreements, drive faster approvals, and create enduring benefits for Indigenous communities.

Other Authors: Lydia O'Neill, Lawyer.

Want to know more?

• Other matters to watch out for in 2024-2025, 12 June 2024 — summarises the Terms of Reference for the Commission's inquiry.