Thu Jun 20

The Albanese government has ordered an inquiry into native title – why is it needed?

Written by Kate Galloway, Professor of Law and Social Justice, Australian Catholic University

Commonwealth Attorney-General Mark Dreyfus has announced that the Australian Law Reform Commission (ALRC) would review the Native Title Act ^[1] to “rectify any inefficacy, inequality or unfairness”.

The purpose of the Native Title Act ^[2] is to ensure traditional owners fully enjoy their native title rights. In the interests of equality, native title holders’ rights should receive the same protection as those of freehold land owners. Although native title determinations tend to make the news, the Native Title Act also regulates third party activity on native title land. Any future activities that would affect native title are referred to as “future acts ^[3]”. Future acts may include, for example, grants of land, mining, agriculture, construction, and so on.

The inquiry will focus on the future acts provisions, and Australia’s obligations under the UN Declaration on the Rights of Indigenous Peoples ^[4] (UNDRIP).

So why is it needed?

Future acts on native title land

Future act processes happen routinely. They are a part of doing business in areas subject to native title or a native title determination. The Native Title Act gives procedural rights to traditional owners depending on the type of activity proposed and the extent of native title rights affected.

Procedural rights include: being informed of a future act, the right to be consulted and to comment on the proposal, and in some cases, a right to negotiate with the third parties involved.

The process establishes the terms on which the (future) act might be carried out. This may include, for example, requirements to obtain cultural heritage advice, or compensation paid to the traditional owner group. The act also allows for objections by any member of the native title group.

If an entity wishes to validly ^[5] carry out activities that affect native title, they must enter into an indigenous land use agreement (ILUA) with the traditional owner group concerned, and register the agreement.

Although the future acts regime provides a structured interface between native title holders and other intending land users, there are some well-recognised problems with the system.

Limits of the future acts regime

The future acts regime does at least inform native title holders when their land rights are going to be interfered with (by a future act). It can also give native title holders an opportunity to negotiate the terms of use of native title land.

However, native title law generally prioritises other rights. Consequently, in practice, power remains largely with non-Indigenous parties at the expense of traditional owners.

For example, Aboriginal and Torres Strait Islander people do not have the right to refuse other activities on their land – even when they hold exclusive use rights. They often feel pressured to consent to future acts because if they do not, the other party will seek an arbitrated outcome that generally favours that party. In other words, the system works against traditional owners freely giving their consent.

In practice, ILUAs are confidential and often subject to non-disclosure provisions. These provisions prevent traditional owners from commenting publicly on matters affecting their land. The case study of Juukan Gorge ^[6] illustrates the potential for disastrous outcomes where people are not able to speak up about activities on their land.

Further, over the years, commentators ^[7] have observed ^[8] that the courts have interpreted the future acts provisions to the detriment of traditional owners. The protection provided by the provisions has therefore been diminished, and a review is warranted.

Human rights considerations

The inquiry’s terms of reference require the ALRC to take account of the 2021 report by the former Joint Standing Committee on Northern Australia, “A Way Forward ^[9]”. The report recommends review of the Native Title Act, including the future acts regime, protection of the right to free prior and informed consent, and prohibition of non-disclosure clauses in ILUAs. These recommendations have apparently informed the framing of the current ALRC review although its scope is broader than that of the report.

The failure of the 2023 Voice referendum leaves Australia without an entrenched mechanism for expression of First Peoples’ determination of their own affairs. However, we do have an existing native title framework and the future acts regime potentially provides First Peoples in Australia with one of the few opportunities for self-determination recognised by Australian law. This new review provides the chance to update the future acts framework to give expression to Australia’s obligations under UNDRIP ^[10] by including a right to self determination and the associated right to free prior and informed consent on matters affecting land.

A commitment to the opportunity for traditional owners to engage fully in decisions affecting their land and to benefit fully from their land, would see a substantive overhaul of the existing legislation. The well-understood UNDRIP principles are a helpful place to start in re-balancing the dynamic of land negotiations.