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Review of the Future Acts Regime: Issues Paper

Submission Date: 16 April 2025

The Law Council of Australia provided a submission in response to the Issues Paper released by the Australian Law Reform Commission (ALRC) as part of the Review of the Future Acts Regime (Review).

The Law Council understands that, through the Issues Paper, the ALRC is seeking to identify the issues that it should examine over the course of the Review. This submission briefly provides some legislative background and relevant contextual considerations in relation to the future acts regime and then, in response to Questions 1 and 2 of the Issues Paper, sets out a number of issues at a high level for consideration as part of the Review.

Legislative background and context

As identified in the Issues Paper, the future acts regime provides the legal framework for dealings that affect native title rights and interests after the commencement of the Native Title Act 1993 (Cth) (NTA).1

The future acts regime is contained in Part 2, Division 3 of the NTA. Its current form was shaped by the Native Title Amendment Act 1998 (Cth) (1998 Amendment Act) as a response to the High Court’s decision in Wik Peoples v Queensland, which concerned the co-existence of native title with pastoral leases.2

The 1998 Amendment Act legislated the then Government’s ‘Ten Point Plan’, in which the stated intention was ‘to strike a fair balance between respect for native title and security for pastoralists, farmers and miners’.3 In the Law Council’s view, the 1998 amendments subordinated native title rights to a wide range of other interests and curtailed to a significant extent the procedural rights of native title owners, in particular the right to negotiate.

Professor Mick Dodson AM, for example, suggested at the time that the 1998 amendments did not allow ‘sufficient time to integrate the belated recognition of native title into Australia’s land management system’.4 Other scholars have since criticised the amendments from a substantive and procedural perspective. As set out by Richard Bartlett in Native Title in Australia:

The 1998 amendments to the Act enabled the denial of the application of the right to negotiate over much of the area of Australia where native title might be established, and removed many forms of grant from its ambit, substantially reducing its significance, and greatly limiting access by native title holders.5

The 1998 Amendment Act had far-reaching implications for the future acts regime, including from a procedural perspective. Concerns with the regime were raised most recently in the final report of the Joint Standing Committee on Northern Australia’s Inquiry into the destruction of the Juukan Gorge (Juukan Gorge Report). The Juukan Gorge Report recommended a review of the NTA to inquire into the future acts regime to address:

1 Australian Law Reform Commission, Review of the Future Acts Regime (Issues Paper 50, November 2024) 1 (Issues Paper). See also, Richard Bartlett, Native Title in Australia (LexisNexis, 5th ed, 2023) 563.
2 Wik Peoples v Queensland (1996) 187 CLR 1.
3 Hon John Howard MP, Prime Minister of Australia, Amended Wik 10 Point Plan (Media Release, 8 May 1997).
4 Mick Dodson quoted in Paul Keating, ‘10-point plan that undid the good done on native title’, Sydney Morning Herald (online, 1 June 2011).
5 Richard Bartlett, Native Title in Australia (LexisNexis, 5th ed, 2023) 64, [5.22].
6 Joint Standing Committee on Northern Australia, Parliament of Australia, A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge (Final Report, October 2021) rec 4 (‘Juukan Gorge Report’).

Last Updated on 30/04/2025

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