Native Title Act 1993: future acts, ILUAs and the right to negotiate

Future acts and the validation regime

A ‘future act’ is an act done after 1 January 1994 that affects native title rights and interests, as defined in section 233 of the Native Title Act 1993. These acts can include grants of mining tenements, exploration permits, infrastructure approvals and resumptions. The Native Title Act 1993 aims to regulate how these acts can proceed without invalidating existing native title. EPBC Act overview

Future acts done in breach of the Act are invalid to the extent they affect native title (section 24OA). To ensure validity, procedures for undertaking future acts are outlined in subdivisions B through P of Division 3, Part 2. These procedures are designed to provide a framework for engagement with native title holders.

States and territories have the ability to legislate alternative procedures for future acts under sections 43 and 43A. However, any such state or territory legislation requires approval from the Commonwealth to be effective.

Right to negotiate (Subdivision P)

The right to negotiate (RTN) applies to certain mining and compulsory acquisition future acts under Subdivision P of Division 3. These future acts trigger a process designed to ensure native title parties are consulted and have the opportunity to negotiate outcomes. The process begins with the Government party providing notice of the proposed act to native title parties and the public. This notification initiates the negotiation period.

Section 31 mandates that the Government, the proponent of the act, and the native title parties engage in good faith negotiations with the aim of reaching an agreement. This negotiation period extends for a period of six months from the notification day. EPBC Act overview considerations may also arise during this process.

If the negotiation period concludes without a mutually acceptable agreement, any party involved can apply under section 35 to the National Native Title Tribunal. The Tribunal then makes a determination under section 38, deciding whether the act may proceed, may not proceed, or may proceed subject to specific conditions.

Indigenous land use agreements (ILUAs)

Indigenous land use agreements (ILUAs) are voluntary agreements concerning the use and management of land and waters. These agreements are registered under Subdivisions B, C or D of Division 3. There are different types of ILUAs, depending on the circumstances.

Body Corporate ILUAs are used where determinations of native title have been made and a registered native title body corporate exists. Area Agreement ILUAs apply where there is no body corporate covering the whole area. Alternative Procedure Agreements are used when parties are unable to agree on all matters but wish to bind specific groups.

A registered ILUA can validate future acts done with the consent of the parties. This includes acts that would otherwise require a right to negotiate.

Compensation and procedural rights

Native title holders may be entitled to compensation where future acts impact their native title rights. This entitlement is provided for under sections 17 and 20 of the Native Title Act. Where land is subject to compulsory acquisition, compensation is payable on just terms, mirroring the entitlements available to other landowners.

Certain acts, not subject to a Right to Negotiate (RTN) process, trigger lesser procedural rights. These include notification and the opportunity to be heard. Section 24MD extends these procedural protections to acts that satisfy the freehold test, ensuring native title holders receive the same procedural rights as ordinary title holders in those circumstances.

The Native Title Act operates in conjunction with other legislation. It does not replace state-based heritage protection regimes, such as the Aboriginal Heritage Act 1972 in Western Australia.