On 24 June 2026, the Commonwealth Attorney-General tabled in Parliament the latest report of the Australian Law Reform Commission (the ALRC) titled “Fulfilling the Promise of Mabo: Reforming the Future Acts Regime” (the Report).
86 recommendations are made to reform the Native Title Act 1993 (Cth) (the NTA) and associated legislation (the Recommendations). The ALRC’s inquiry was overseen by President Mordecai Bromberg and Anthony McAvoy SC, who was appointed as a part-time Commissioner.
On 17 and 18 August 2026, the Mabo Centre will host “Fulfilling the Promise”, a symposium bringing together the native title sector and other stakeholders to look at how the Reports and its Recommendations can be progressed. The symposium will be in Naarm, Melbourne. If you would like to attend, please contact gwynette.govardhan@unimelb.edu.au.
This summary does not capture all of the details of the Report or Recommendations, which can be accessed here: ALRC Report 144 – Final Report.
Summary of the Recommendations of the ALRC
The Recommendations commence at chapter 3 of the Report.
Ch 3 – Future Act Agreement-Making considers fairness, efficacy and equity in agreement-making, including:
- Introducing good faith conduct standards, developed in consultation with theNational Native Title Tribunal (the NNTT), requiring all parties negotiating any future act agreement to negotiate in good faith;
- Consolidating, clarifying and expanding the functions of the NNTT to assist parties in negotiating, implementing and resolving disputes under agreements;
- Amending the Native Title (Prescribed Body Corporate) Regulations 1999 (Cth) to allow Prescribed Body Corporates (PBCs) to use standing instructions to enter into agreements, provided the future act does not extinguish native title; and
- Providing a streamlined way for PBCs to do business on their own land, without going through the normal future act procedures.
Ch 4 – Future Act Agreement Content looks at changes to the contents of future act agreements such as:
- Voiding clauses that limit or restrict how native title parties manage payments;
- Introducing model periodic review clauses in agreements;
- Clarifying how compensation is dealt with under ILUAs (s 24EB); and
- Tightening the “pass-on” compensation provisions so that liability sits with the relevant government if it is not reasonably practicable for the native title holders to recover from the relevant proponent.
Ch 5 – Post-Agreement recommends changes to the laws about how agreements operate after they are made, including the following:
- Improving access to and information about existing agreements and ILUAs; and
- Creating a process for the Courts to assist where there are disputed terms of an agreement, or where a native title party experiences substantial unfairness as a result of a pre-determination agreement.
Ch 6 – Reshaping the Statutory Procedures: Impact-based scheme looks at replacing the process for dealing with future acts through the creation of an impact-based scheme that is complaint with UNDRIP and non-discriminatory. It is noted that the recommendations in chapter 6 are complex and detailed and the below is a summary of some (but not all) of the proposed scheme. More information and discussion will be arranged by the Mabo Centre. Chapter 6 proposals include:
- Repealing ss 32 and 237 of the NTA to remove the expedited procedure;
- Creating five groups of future act categories (Groups A – E) each with different procedural rights under the impact-based scheme, whereby Group A is “assessed limited impact acts”, Group B is “assessed lower impact acts”, Group C is “negotiated lower impact acts”, Group D is “right to negotiate higher impact acts” and Group E is “equivalency future acts” (where affected native title parties have the same procedural rights as freehold title holders in the same circumstances);
- Recommending that categories of future acts cannot be included in Group A or Group B where they involve ‘major disturbance’ to land or waters, material impact on cultural rights and interests of native title parties, amongst others.
- Proposing the NNTT be empowered to identify the nature and scope of categories of future acts to be included in Group A or Group B, with a process of assessment undertaken in consultation with interested persons;
- Amending the NTA to provide that where a proponent has agreed to do something for a future act to becomes a condition of the future act.
Ch 7 – Statutory Procedures: Alternative Reforms recommends an alternative set of amendments to the impact-based scheme. Many of the proposals are technical and focused on clarifying or tightening the way the existing scheme operates. The proposed changes include:
- Repealing the laws in the NTA which provides for future acts concerning primary production;[1]
- Creating a right to negotiate for water, where there is a proposed use of water over a certain limit;
- Providing native title parties with the same rights as ordinary title holders for all renewals, re-grants and extensions of non-native title rights and interests;
- Proposing ‘low impact future acts’ can only be done on determined native title where there is a ‘low impact agreement’ with the PBC for the act;
- Amending the expedited procedure to make it efficient and fairer for native title parties; and
- Amending the NTA so that the non-extinguishment principle applies to a greater number of future acts including the establishment or construction of public works.
Ch 8 – Statutory Procedures: Ancillary reforms recommends additional changes to the way future acts work, including:
- Introducing technical changes to the right to negotiate, including extending it to areas beyond the landward side of the high-water mark of the sea;
- Extending the time for native title applications to be made in relation to areas of a non-claimant application, and other changes to the non-claimant application process;
- Establishing a record of future act notices with the NNTT; and
- Creating a standard template for future act notices.
Ch 9 – Right to Negotiate: Negotiations recommends structural changes to the right to negotiate by:
- Creating a process for the native title party to bring an application to the NNTT for a determination that an act cannot be done;
- Creating a process for negotiating parties over a future act to apply to the NNTT for a determination of specific issues;
- Amending the future act determination application process to enable the NNTT to impose both financial and non-financial conditions in determining that an act can be done subject to conditions;
- Providing the NNTT with the capacity to mediate and conciliate agreements; and
- Creating stronger consequences for a failure to negotiate in good faith.
Ch 10 – Right to Negotiate: Arbitration extends changes to the right to negotiate process to the NNTT’s arbitration function. Recommendations include:
- Amending the s 39 criteria to prevent a decision by the NNTT that a future act can be done without an agreement, unless it can be satisfied that fair and just redress will remediate the impact or effect of the future act;
- Repealing s 38(2) to allow the NNTT to make conditions regarding the payments of profits made, income derived or things produced from the future act;
- Preventing a government party from issuing a notice relating to the same or substantially similar future act following a decision that a future act cannot be done without leave from the NTT or five years have passed; and
- Enabling the NNTT to refer matters to a private arbitrator, on the pre-condition that assistance with the NNTT has been first explored.
Ch 11 – Statutory Obligations and Effective Remedies recommends that the NTA clearly impose statutory obligations in respect of future acts and remedies when those obligations are not met, including:
- Creating an express obligation to comply with the procedural requirements in the regime;
- Detailing the consequences of non-compliance with the future acts regime, including that where there is a failure to comply with the validating conditions this will result in the relevant future act being invalid;
- Creating in the NTA a civil remedy regime to address non-compliance; and
- Introducing a ‘modified asymmetrical costs framework’[2] for proceedings to enforce compliance with the future acts regime – meaning that a successful applicant would have their costs paid by the unsuccessful respondent.
Ch 12 – Costs Recovery recommends that there be costs recovery mechanism for PBCs to cover their costs in fulfilling their obligations under the future acts regime.
Ch 13 – Native Title Plans provides for ‘Native Title Plans’ as a voluntary self-determined pathway to validity for future acts and recommends the following:
- Making Native Title Plans the sole and mandatory pathway to validity in instances where the plan has been state government approved (unless there is an ILUA);
- Allowing for PBCs to develop Native Title Plans which may set out processes and conditions for how future acts are validated;
- Making Native Title Plans a form of certification for the purposes of confirming validity of a future act, lodged with the NNTT and maintained on a public record;
- Mandating Native Title Plans are approved by common law holders prior to being registered and subject to common law holder review every 5 years at a minimum); and
- Expanding the range of matters that Native Title Plans may deal with in a non-binding manner.
Ch 14 – The Bigger Picture recommends substantially increased funding for both PBCs and the NNTT, and that there be a requirement for NNTT appointments that there be lived experience through being, or working with and representing, Aboriginal and Torres Strait Islander peoples.
ALRC Conclusions on the Operation of the Native Title Act 1993 (Cth)
In its Report, the ALRC concluded that the future acts regime:
- generally, does not provide adequate procedural or substantive rights or protections;[3]
- has significantly failed to provide effective, timely, fair and just redress to native title holders;[4]
- does not provide access to effective and fair compensation;[5]
- is not only unfair and inequitable, but key aspects are discriminatory as native title holders are denied equality before the law. This is in breach of Australia’s international obligations and out of alignment with the Racial Discrimination Act 1975 (Cth).[6]
- validating pathways are inefficient, costly, can cause delay,“…tend to encourage disengagement and disputes” and are “inflexible and unable to accommodate new and emerging industries… as well as best-practice approaches for delivering sustainable and empowering socio-economic outcomes for First Nations peoples”.[7]
The ALRC anticipates that the recommended reforms will address these problems by:[8]
- creating increased opportunities for economic development and benefit-sharing;
- developing a future acts regime that is efficient and low cost;
- supports fair negotiations, promotes relationship building and facilitates equitable outcomes; and
- aligns with Australia’s international law obligations.
[1] Native Title Act 1993 (Cth), pt 2, div 3, subdiv G.
[2] Modelled on similar changes to the Australian Human Rights Commission Act 1986 (Cth).
[3] Australian Law Reform Commission, Fulfilling the Promise of Mabo: Reforming the Future Acts Regime (Report No 144, March 2026), p 57 [1.15].
[4] Ibid [1.19].
[5] Ibid [1.15].
[6] Ibid [1.17].
[7] Ibid [1.18].
[8] Ibid [1.22].
June 24, 2026