The future acts regime
Definition of Future Act
A future act is an act done after 1 January 1994 (the date of the commencement of the Native Title Act 1993) which affects native title.
An act 'affects' native title if it extinguishes or is otherwise wholly or partly inconsistent with the continued existence, enjoyment or exercise of native title. The word ‘act’ is defined widely to include the making or amendment of legislation, the grant or renewal of licences and permits, and can include executive actions in some circumstances. An act of government may ‘affect’ native title if, for example, it allows someone to do an activity on native title land that they otherwise have no right to do, or it prevents a native title holder from doing what their native title entitles them to do.
The Future Acts Regime
The Native Title Act 1993 seeks to protect native title rights by prescribing procedures which must be complied with by Commonwealth, State and Territory Governments before a future act can be validly done.
Generally speaking, if a government department or agency is planning to do an act that has the potential to affect native title, governments involved in such activities need to consider the requirements of the Native Title Act 1993.
Different subdivisions within the Native Title Act 1993 relate to different types of activity:
- acts with non-claimant protection (Subdivision F)
- primary production (Subdivision G)
- managing aquatic resources, water and airspace (Subdivision H)
- renewals and extensions of permits etc (Subdivision I)
- acts involving parks (Subdivision J)
- public works (Subdivision K)
- low impact acts (Subdivision L)
- legislation, mining and compulsory acquisition (Subdivision M)
- offshore acts (Subdivision N)
Most subdivisions set out: - the procedures to be followed to ensure the act is valid
- the effect of the act on native title, and
- whether compensation is payable to native title holders for the act.
The subdivisions are arranged in an alphabetical hierarchy. Where a future act could fit within more than one subdivision, it is taken to be subject to the subdivision that appears earlier in the alphabet.
If a future act does not fit within any of the subdivisions, it can only be validly done in accordance with a registered Indigenous Land Use Agreement.
Indigenous Land Use Agreements (ILUAs)
ILUAs are voluntary agreements made with native title parties about the use and management of land and waters. An act can generally be done under an ILUA registered with the National Native Title Tribunal, whether or not it falls within any of the categories of acts allowed under the future act regime. This requires the native title parties to give their agreement or consent to the act being done. Even if an act could be done under another subdivision of the future act regime, an ILUA may be the preferred option.
The Native Title Act provides for different types of ILUAs to be registered, dependant upon whether there are native title holders for the whole of the area the subject of the ILUA, and whether there are native title bodies corporate or representative bodies for the area concerned.
Non-Extinguishment Principle (s.238)
In most cases, the non-extinguishment principle applies to acts permitted under the future act regime or a registered Indigenous Land Use Agreements . Where this principle applies, native title will not be extinguished by a future act, but rather suspended for the period of time that the future act (for example, the grant of a lease) is in operation. When the period of operation has ended, native title will no longer be suspended.