What is a future act determination?
A future act determination is a decision made by the Tribunal about whether a future act that has gone through the right to negotiate process may be done, may be done subject to conditions, or must not be done.
When a negotiation party applies for a future act determination, the Tribunal will conduct an inquiry into whether the future act can proceed. In making a determination, the Tribunal must take into account the matters set out in s 39 of the Native Title Act. The parties have the opportunity to produce evidence and make submissions to the Tribunal 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 of the native title parties.
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. Where the parties cannot reach agreement, any of them may apply to the Tribunal for a future act determination.
A preliminary conference is usually held two to three weeks after an application is received. At the preliminary conference, the Member will ask the native title parties whether they allege that the Government party or a grantee party did not negotiate in good faith.
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’, meaning the Tribunal’s decision will be based on the documents provided by the parties. If required, the inquiry may involve an oral hearing, whether in the Tribunal’s offices or ‘on country’ (that is, a hearing held on or near the area affected by the future act).
The Tribunal must make a determination as soon as practicable. If a determination is not made within six months of the application being made, the Tribunal must advise the Attorney-General.
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 email to s35apps.compliance@nntt.gov.au or by post to your local Tribunal office.
If you need an extension of time to comply with Tribunal directions, please refer to:
Are Non-Disclosure Directions required?
If you wish to provide evidence or submissions to the Tribunal 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 rules about how the parties are required to keep, use and dispose of sensitive information, and who may have access to it. They can include directions requiring the parties to use the information only for the purpose of the inquiry or that only certain individuals or persons of a particular gender may view the information.
For more information on how to apply for Non-Disclosure Directions refer to:
Who can apply for a future act determination?
You can apply for a future act determination if you are a party to a ‘right to negotiate’ procedure and:
- at least six months have passed since the notification day; and
- 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
You can apply for a future act determination by completing a Form 5 application.
To apply, send the completed Form 5 and, if applicable, an application fee by email to s35apps.compliance@nntt.gov.au or by post to your local Tribunal office. Please read the Instructions on how to complete the Form 5.
Application fees
The application fee is currently $1002.00 (as at 1 July 2023). The application fee is payable for each future act (e.g. each tenement application).
Payment is made using electronic funds transfer (EFT).
To make payment, please complete the following steps:
-
Transfer the application fee to the following account, using the applicant’s name and the tenement number or property description as the payment reference:
Account Name: Federal Court of Australia Official Administered Receipts
BSB: 092 – 002
Account number: 110369
- Send the completed application form along with proof of transfer to the NNTT, preferably by email.
A receipt of payment will be provided once your application is processed.
Fee exemptions and waivers
If one or more of the following circumstances applies, an application 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 or native title service provider
- 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
- receives ABSTUDY.
The Native Title Registrar can also decide to waive the fee if satisfied that payment of the fee would cause the applicant financial hardship. A fact sheet about how to apply for a fee waiver is available.
If you intend to rely on an exemption or are seeking a waiver of the application fee, you must provide proof that the exemption applies (e.g. a photocopy of your health care card) or evidence of financial hardship (e.g. bank statements and other financial records) when lodging your application.
Refund of fee
If the application is not accepted or a determination is made in your favour, you may be entitled to a refund of the application fee. To request a refund, please fill in the ‘Request Form – for fee refund’ and send it by email to s35apps.compliance@nntt.gov.au or by post to your local Tribunal office.