A future acts regime overhaul could result in less security of tenure for food and fibre producers.
As part of its commitment to protecting First Nations’ cultural heritage, the Federal Government ordered an Australian Law Reform Commission (ALRC) review of the Native Title Act 1993 (Cth) (the Act) in June 2024.
The ALRC handed down its final report to the Commonwealth Parliament this June, unveiling 86 recommendations to give more power to native title holders and place greater burdens on farmers.
Re-writing the regime
As it stands, the Act aims to protect Indigenous Australians’ traditional rights and interests in land and waters. It regulates “future acts”, being proposed physical activities or legal changes that extinguish or are inconsistent with the continued existence, enjoyment or exercise of native title rights.
For example, before the State Government grants a petroleum lease to a mining company, the project proponent must negotiate with good faith, meaning they must act with sincerity of intention, to reach agreement on compensation and other benefits for native title holders.
Historically, farmers have rarely needed to follow such processes. Crown leases for pastoral purposes are generally treated as permissible future acts, and where pastoral and non-exclusive native title rights coexist, pastoral rights prevail. As a result, routine pastoral activities have generally fallen outside the future acts regime.
However, the ALRC has proposed an impact-based assessment for a broader range of future acts.
This would require pastoral lessees to negotiate with native title holders for lease renewals, expansion of primary production activities to incidental activities like farm tourism operations, potentially exposing pastoral lessees to expensive legal and administrative processes, particularly where a lease is covered by multiple determinations.
Water licence renewals and water transfers will also potentially activate a negotiation process where they fall above a prescribed impact on native title rights threshold, though this threshold is yet to be defined.
Where negotiations reach a deadlock, the dispute would be escalated to the National Native Title Tribunal to decide the compensation to be paid to the native title holders and potentially impose conditions such as compliance with a cultural heritage management plan.
Thynne + Macartney’s native title specialist Mark Boge warns that the suggested amendments will add another layer of procedural complexity and delays in approval times.
“This is a rejection of the concept of permissible future acts on which many pastoral respondents who have consented to native title determinations have relied,” Mr Boge said as part of his submission to the ALRC’s consultation process.
Impacts on freeholding
Furthermore, proposed amendment to the non-claimant application process could make it even more difficult for landholders to convert leasehold properties to freehold where the existence of native title has not yet been determined.
In those circumstances, the landholder can seek a ruling that native title does not exist, paving a way to conversion.
However, the ALRC wants to extend the present three-month notice period to 12 months, which Mr Boge warns will add to the time and cost involved and will lower the prospect of success.
Management plans
“Native Title Plans” have also been suggested as an alternative to the national rules for validating future acts.
State governments would be empowered to make such plans mandatory for a particular local determination area, in which case landholders would be bound by the plan rather than the usual future acts regime.
Mr Boge fears pastoralists could be bound to shifting standards.
Call to action
Thynne + Macartney urges the Federal Government to consider the need for domestic food and fibre production before implementing any of the changes recommended by the ALRC.
Mark Boge is peer recognised by Chambers & Partners and Best Lawyers as a leading native title lawyer for pastoralists.
We would like to acknowledge the contribution of Gracie Deeran in drafting this article.
This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.
