Key takeaways 

• On 24 June 2026, the Attorney-General tabled the Australian Law Reform Commission’s Final Report, Fulfilling the Promise of Mabo: Reforming the Future Acts Regime in the Native Title Act 1993 (Cth). 
   
• The report is the culmination of the first fulsome review of the future acts regime since the Howard Government. 
   
• The report contains 86 recommendations and if all of the ALRC’s 86  recommendations are adopted, the pathways for validating future acts will be based on an impact-based scheme expanding the procedural rights of native title holders.

In brief 

On 24 June 2026, the Attorney-General tabled the Australian Law Reform Commission’s Final Report, Fulfilling the Promise of Mabo: Reforming the Future Acts Regime in the Native Title Act 1993 (Cth).

The report follows the first review of the future acts regime since it was amended in 1998 after the Wik decision and Howard Government’s 10 point plan.

The ALRC identified that the current Future Acts Regime:

• contains inadequate protections for the procedural and substantive rights of native title holders, in particular in relation to the expediated procedure for mining exploration;
• offers inefficient and costly pathways for validating future acts; and
• fails to offer effective, timely and fair redress for future acts to native title holders.

The report contains 86 recommendations, including new statutory procedures for validating future acts, reforms to uphold the right to negotiate, removal of the expediated procedure for mining exploration and additional requirements for future acts agreements.

If the ALRC’s recommendations are adopted, the right to negotiate will be expanded to additional kinds of future acts and the circumstances in which native title can be extinguished will be narrowed.

What is the Future Acts Regime? 

The Native Title Act 1993 (Cth) (NTA) recognises and provides general protection of native title following its recognition at common law by the High Court in Mabo.

Native title is defined in section 223 of the NTA and describes the rights and interests that native title holders have in land and waters under their traditional laws and customs, as recognised by the Australian legal system. Those rights can vary from place to place, depending on customary differences and the extent to which they have been affected over time.

The future acts regime is established by the NTA. It validates ‘acts’ undertaken after 1 January 1994 that may affect native title rights and interests.

Examples of acts that affect native title:

• granting licences, leases, permits, forestry rights, easements or rights of way on Crown land; 
• imposing covenants on Crown land, or other conditions or restrictions on use; 
• public works or the construction of other works and structures on Crown land; or
• compulsorily acquiring or accepting the voluntary surrender of native title.

Currently the future acts regime allows certain types of acts to be validated, subject to fulfilling certain procedural and substantive requirements.  It is called a ‘hierarchy’ as it is divided into a series of ‘Subdivisions’. These work in a progressive way. A future act can only be validated under a subdivision if it cannot be validated under any earlier category.  There are different procedural requirements under each subdivision.

An impact-based scheme 

The ALRC has recommended replacing many of the provisions that give effect to the current future acts regime and replacing these with an impact-based scheme.

Under the proposed reforms, future acts would instead be classed as one of five groups, namely:

• Group A: ‘Assessed limited impact acts’, requiring native title holders to be notified and be provided with an opportunity to comment.
   
• Group B: ‘Assessed lower impact acts’, requiring native title holders to be provided with an opportunity for consultation.
   
• Group C: ‘Negotiated lower impact acts’, activating procedural rights to enter into a ‘low impact agreement’.
   
• Group D: ‘Right to negotiate higher impact acts’, including rights to mine and compulsory acquisition for a non-governmental purpose. For future acts in this group, the government party must afford native title holders with the right to negotiate.
   
• Group E: ‘Equivalency future acts’, requiring native title holders to be given the same procedural rights that a freehold title landholder would have in the same circumstances. Future acts in this group include compulsory acquisition for a governmental purpose, public works, and emergency acts.

Categories of future acts falling within Groups A and B would be prescribed by regulations made under the Act. The Native Title Tribunal would also have the power to recommend the inclusion of additional categories of future acts in Groups A and B if it does not involve a major disturbance to land or waters, a material impact on cultural rights and interests, substantial interference with native title holders’ enjoyment of the subject land or water, or uncompensated economic loss or detriment. 

Under the proposed scheme, public works must deliver an essential service to the public to be a valid future act. 

Additionally, the scheme expands the right to negotiate to future acts involving the acquisition of land or waters wholly within a town or city, or of land acquired for infrastructure facilities.

Reforming the right to negotiate 

Section 25 of the NTA confers a right to negotiate about certain kinds of future acts.

The ALRC has recommended that the NTA expressly oblige parties to negotiate in good faith with respect to any future act agreement. ‘Good faith’ is to be informed by new standards of conduct, to be set out in the NTA that promote the informed consent of native title holders, the effective participation of the parties and genuine collaboration.

Proposed amendments to the NTA would also place the onus on any party who is alleged to have failed to negotiate in good faith to demonstrate otherwise. Failure to comply with the new negotiation provisions would render the future act invalid until the non-compliance is rectified. Non-compliance may also attract civil remedies, such as injunctive relief or financial penalties.

If the proposed reforms are adopted, a native title party would be able to apply to the Tribunal within three months after being notified of a proposed future act. Parties would also be able to jointly seek a binding determination of issues from the Tribunal at any stage during the minimum 12-month negotiation period.

New provisions for future acts agreements 

The ALRC has recommended that future act agreements include:

• a ‘model periodic review clause’, developed following a consultative process, to be included in agreements with a duration that is longer than five years or unspecified; and
   
• a dispute resolution clause, providing for a process of consultation, mediation or conciliation.

The ALRC also proposed that the NTA prohibit terms of future acts agreements that restrict a native title party from raising a grievance or accessing remedies, require non-disclosure, or that limit or restrict payments under agreements. 

Next steps 

The Attorney-General has confirmed the Commonwealth Government will consider the ALRC’s recommendations.

Government clients should be mindful that if the recommendation to repeal s 26(1)(c)(iii)(B) of the NTA is accepted, this section will mean that Subdivision P or an equivalent negotiation regime will apply to compulsory acquisition for infrastructure facilities.