An Australian Law Reform Commission (ALRC) report has found unfairness, inefficiency and discrimination in the “future acts” regime, which regulates lawful infringement of native title rights and interests.
Fulfilling the Promise of Mabo: Reforming the Future Acts Regime in the Native Title Act 1993 (Cth), which was tabled in Federal Parliament yesterday, makes 86 recommendations to reform the regime.
The ALRC found the regime fails to provide native title holders with fundamental protections when their property rights are infringed, undermining their ability to protect their interests, safeguard their culture and share in the economic benefits of development.
It also found that government and industry face complex, uncertain and inefficient approval processes which result in wasted resources and significant delays to economic development.
“The future acts regime fails to provide native title holders with two fundamental protections when their property rights are infringed: fair and reasonable participation in decisions that affect those rights, and fair and timely compensation when infringement occurs,” ALRC President Justice Mordy Bromberg said.
“Meanwhile, governments and proponents face delays, complexity and mounting compensation liability – we can, and should, do better.”
Key recommendations include:
- Improving the framework for decision-making, including the right to negotiate;
- Replacing inefficient and inflexible processes for determining procedural protection;
- Providing for fair and equitable arbitral determinations;
- Providing native title holders with fair, just and timely redress;
- Improving compliance, enforcement and legal remedies; and
- Better resourcing for native title-holder participation.
If implemented, the reforms would fulfill the promise of the High Court’s Mabo decision by ensuring equality before the law and compliance with Australia’s international obligations; supporting fair processes and outcomes for native title parties; and providing greater certainty, efficiency and streamlined decision-making for governments and industry.
The Federal Government asked the ALRC to review the regime in June 2024. The final report was informed by more than 160 submissions, and extensive consultation and engagement around Australia with native title holders and First Nations communities, industry, governments, and legal practitioners
Commissioner Tony McAvoy SC, who led the review with Justice Bromberg, said throughout the inquiry, the ALRC consistently heard that the future acts regime was not fit for purpose and failed to protect native title rights, “undermining opportunity, culture, lore and spirituality”.
“Our reforms are designed to deliver the fair processes and fair outcomes that communities deserve,” Mr McAvoy said.
“They chart a path to a system where equality and economic development are achieved together.
“A future acts regime that is streamlined, efficient and predictable will deliver shared benefits for communities, regions and industries around the country.”
Read the report here.
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