What is a future act determination?
A future act determination is a decision made by the Tribunal about whether a future act, attracting the right to negotiate may be done, subject to conditions, or must not be done.
When an application for a future act determination is made, the Tribunal will conduct an inquiry into the future act. The Tribunal must take into account the criteria set out in s 39 of the Native Title Act. The parties are asked to provide evidence and make submissions on those matters.
The Tribunal must not make a determination about the future act if it is satisfied that either the grantee party or the Government party has failed to negotiate in good faith with any native title party.
What to expect in a future act determination inquiry
In most cases, parties reach agreement about the future act and do not need to seek a determination. Future act determinations are a last resort for parties who cannot reach agreement.
A preliminary conference is usually held about two to three weeks after the application is received. Parties are asked to attend in person, but may attend by phone if personal attendance is not possible. At the preliminary conference the Member will ask the native title party whether it alleges that the Government or grantee party or both did not negotiate in good faith.
The Member may also ask other questions relevant to the inquiry. Once the Member has heard from the parties, he or she will issue Directions for the conduct of the inquiry. The Directions set down the dates for the hearing, as well as the dates by which the parties are to provide submissions and supporting evidence. Most inquiries are conducted ‘on the papers’, but if required, the inquiry may involve an oral hearing or a hearing ‘on country’ (that is, a hearing held on or near the area affected by the future act).
The Member will try to hand down his or her decision within six months of the future act determination application being made.
Providing submissions and evidence to the NNTT for inquiry
During an inquiry, the Tribunal may direct each party to provide submissions or evidence about matters the Tribunal has to take into account when making its decision.
Submissions may be provided by mail, in person or by email.
If you want to provide submissions or evidence but do not want the information to be disclosed to other people (for example, because it is culturally sensitive or commercial-in-confidence), you may ask the Tribunal to make Non-Disclosure Directions.
Non-Disclosure Directions set out how parties are required to keep, use and dispose of sensitive information, and who may have access to it. This can include directions to use the information only for the purpose of the inquiry or that only individuals of a particular gender may view the information.
Can I apply?
You can apply for a future act determination if you are a party to negotiations about a future act and:
- at least six months have passed since the notification day;
- the negotiation parties have not obtained the agreement of each of the native title parties to the doing of the future act.
How to apply
Please read the Instructions on how to fill in the Form 5.
Fill in the application form, called a Form 5.
Send the Form 5 and, if applicable, an application fee to the NNTT.
If paying by cheque, please send this with your Form 5.
The application fee is currently $818 per future act (e.g. for an application relating to five mining leases, you must pay five times that amount). It can be paid by cheque or electronic funds transfer.
If paying by electronic funds transfer, please tell us that you wish to pay this way when you lodge your Form 5. We will then provide you with a file number within 24 hours. You will need to make your payment within 24 hours of receiving the file number. You will also need to complete a ‘Request Form – to pay the fee using EFT.' Once you’ve made the transfer, send the completed fee form and proof of transfer to the NNTT.
A receipt of payment will be provided.
No fee payable
If one or more of the following circumstances applies, a filing fee will not need to be paid:
- The applicant has been granted legal aid;
- The applicant is assisted by a representative Aboriginal/Torres Strait Islander body;
- One or more of the people making the application:
- holds a health care card or pensioner concession card;
- is in prison;
- is under 18 years old; or
- receives ABSTUDY.
The Native Title Registrar decides, based on evidence provided, that the fee would cause financial hardship and waives the fee. A fact sheet about how to apply for fee waiver is available.
If you are not required to pay a fee because one of these circumstances, you must provide proof when you lodge the Form 5 (e.g. a photocopy of your health care card).