Native Title Act's expedited procedure under challenge
09 September 2025
Native title year in review 2024-2025
What you need to know
The Federal Court has determined two challenges relating to the expedited procedure in the last 12 months.
In Top End (Default PBC/CLA) Aboriginal Corporation v Northern Territory [2025] FCA 22, the Federal Court considered the test that the National Native Title Tribunal (NNTT) must apply when assessing an objection to the expedited procedure on the grounds that the grant is likely to interfere with an area or site of particular significance to native title parties. It concluded that native title parties are not necessarily required to explain the particular significance of the site, but must demonstrate its particular significance beyond a mere assertion through cogent evidence.
In Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2025] FCA 490, the Federal Court held that judicial review is not available in relation to a government party's decision to include the expedited procedure statement in a section 29 notice. The correct avenue to challenge the decision is by way of an objection to the NNTT.
The Australian Law Reform Commission (ALRC) suggests the repeal of the expedited procedure in its May 2025 Discussion Paper: Review of the Future Acts Regime on the grounds that it is not operating effectively, efficiently or fairly. It suggests that future acts currently subject to the expedited procedure (most commonly exploration tenements) could be subject to exploration ILUAs or one of the proposed new statutory procedures described in the Discussion Paper. This would see many exploration tenements subject to the full RTN process, with its longer timeframes and more detailed process.
What you need to do
In expedited procedure processes, consider whether native title parties have provided cogent evidence that a site is of particular significance. If so, that is likely to mean the expedited procedure process cannot be applied and the full RTN process will be required.
Watch for the ALRC's Final Report in December 2025.
Reminder: What is the expedited procedure?
The expedited procedure is a fast-track process for certain future acts 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 right to negotiate will not apply to the relevant grant.
If no objection is lodged within 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
Areas or sites of particular significance (Top End)
One of the requirements for a future act to attract the expedited procedure is that "the act is not likely to interfere with areas or sites of particular significance, in accordance with their traditions, to the persons who are the holders … of the native title in relation to the land or waters concerned" (section 237(b) Native Title Act).
The decision in Top End (Default PBC/CLA) Aboriginal Corporation v Northern Territory [2025] FCA 22 (Top End), considers this requirement in relation to two grants of exploration licences by the Northern Territory government. Objections were made in response to both notices on the grounds that the future acts were likely to interfere with areas or sites of particular significance. Neither objection was upheld because the NNTT determined that the sites were not of "particular significance" given that the native title parties did not provide sufficient explanation of the particular significance of the sites. The native title party appealed to the Federal Court in relation to both decisions and the matters were heard together.
The Court held that the NNTT had taken the wrong approach in requiring the native title parties to provide an explanation of the particular significance of a site. For example, in one of the objection proceedings, the NNTT recognised that it was clear one of the sites was a site of significance and acknowledged compelling evidence demonstrating this. However, the NNTT said that "the test is whether the site is of particular significance, and it is [the NNTT's] view that the evidence provided falls short of showing this". While the NNTT recognised that an affidavit given by the relevant native title party provided a foundation of evidence describing the attributes of the place including an outline of the traditions of the group as it pertains to the site, the "description d[id] not then go on to explain the particular significance of the site". Consequently, the NNTT was of the view that insufficient evidence has been provided to establish the site's particular significance in the context of s 237(b).
The Court held that the NNTT was wrong to create an additional hurdle, namely requiring that there be evidence explaining the particular significance of the site. It accepted that native title parties must adduce evidence which goes beyond the mere assertion that a site has a particular significance. However, the Native Title Act does not expressly or implicitly require the native title parties to provide an explanation of the particular significance. On this basis, the Court held that there are a number of ways to discharge the particular significance requirement in section 237(b). It said (at [80]):
That a site is of particular significance (in accordance with the traditions of the native title holders) may be established in a variety of ways. Those ways do not necessarily require an explanation of the particular significance of the site. For example, it may be sufficient to show (with cogent evidence) that the site is considered to be of special or more than ordinary significance (in accordance with the traditions of the native title holders), without providing an explanation of why the site is so regarded. Indeed, it may be very difficult to explain why the site is so regarded. For these reasons, in my view, there is no implicit requirement that an explanation of the particular significance of the site be provided.
The appeal succeeded, and the matters were remitted to the Tribunal to be decided according to law.
No judicial review of decision to include an expedited procedure statement in future act notices
In Yanunijarra Aboriginal Corporation RNTBC v State of Western Australia [2025] FCA 490, the native title party applied for judicial review of the State of Western Australia's decision to include an expedited procedure statement in a section 29 notice. The native title party argued that the State had failed to actively consider whether the proposed future acts met the expedited procedure test in section 237 of the Native Title Act, that the inclusion of the expedited procedure statement without proper consideration was unlawful and that this rendered the notices invalid. In response, the State sought summary judgment to dismiss the proceedings on the grounds that the applicants had no reasonable prospect of success or that it was an abuse of process.
The Federal Court found for the State and dismissed the application on the basis that the inclusion of the expedited procedure statement in a section 29 notice was not a reviewable decision.
In doing so, the Court considered the proper construction of section 29(7) of the Native Title Act and agreed with an earlier Federal Court decision in Holt v Manzie (2001) 114 FCR 282. The Court held that the inclusion of an expedited procedure statement in a section 29 notice given by a Government party does not involve a decision that is amenable to judicial review. Furthermore, it is clear that it is the NNTT that has jurisdiction to determine an expedited procedure objection application irrespective of whether or not there is any “error” in a decision by the Government party to assert that the act is one attracting the expedited procedure.
The Court said at [148]:
In my view, the legislative intention to establish an “expedited” procedure is not consistent with the insertion of a process by which the Government party is required to make an administrative decision that it considers that the act is an act attracting the expedited procedure, which may then be subject to judicial review on the ground that the Government party has made a legal or jurisdictional error in its consideration or application of the definition contained in s 237. This would give rise to fragmentation, uncertainty and delay that is antithetical to the notion of an expedited process. It would potentially undermine or frustrate the exercise by the NNTT or other arbitral body of its jurisdiction to inquire into and determine any expedited procedure objection applications.
The appropriate avenue to challenge a government party including an expedited procedure statement is an objection lodged under section 32 of the Native Title Act. The Tribunal will then substantively determine whether the act is an act which attracts the expedited procedure process.
In conclusion, the Court was satisfied that the native title party had no reasonable prospect of success and dismissed the proceedings. Although it was unnecessary to decide, the Court indicated that the proceedings would not have been an abuse of process.
Inquiry into the future acts regime under the Native Title Act
The Australian Law Reform Commission (ALRC) is considering the expedited procedure in its inquiry into the future acts regime under the Native Title Act. Its May 2025 Discussion Paper: Review of the Future Acts Regime suggests that it is not operating effectively, efficiently or fairly and should be repealed. It suggests that future acts currently subject to the expedited procedure (most commonly exploration tenements) could be subject to exploration ILUAs or one of the proposed new statutory procedures described in the Discussion Paper. This would see many exploration tenements subject to the full RTN process, with its longer timeframes and more detailed process. For more information, see our Native Title Year in Review 2024-2025 article "Australian Law Reform Commission releases Discussion Paper in future acts regime inquiry".
Key insights
Top End clarifies the level of justification and evidence that the NNTT can require in assessing whether a site is of particular significance for an expedited procedure objection. While an explanation of the site's particular significance is not required, native title parties must still demonstrate beyond a mere assertion through cogent evidence that, under their traditions, the site is of particular significance. Future decisions of the NNTT and the Federal Court may further clarify where this threshold falls, and the manner in which 'cogent evidence' must be adduced to reach it.
The decision in Yanunijarra was not unexpected and confirmed a number of authorities from over a decade ago.
The repeal of the expedited procedure would likely see the full RTN process applying to many exploration tenements, even if the other reforms proposed in the ALRC's Discussion Paper are enacted. The costs and timelines of this process may be prohibitive for many explorers.
Want to know more?
Other Authors: Richard Anthonisz, Senior Associate; Connor Davies, Senior Associate; Will Simons, Graduate.
