What is a future act?
A future act is a proposal to deal with land in a way that affects native title rights and interests. Examples of future acts include the grant of a mining tenement or the compulsory acquisition of land. A future act will be invalid to the extent it affects native title unless it complies with the procedures set out in the Native Title Act 1993 (Cth). These procedures vary depending on the nature of the future act.
Why do we have future act processes?
Future act processes are based on the principle that in general, acts affecting native title will only be valid if they can also be done on freehold land. These processes gives effect to the principle that in appropriate cases, these acts should only be done after every reasonable effort has been made to secure the agreement of the native title holders. They also provide certainty by ensuring that future dealings with land are enforceable, notwithstanding the existence of native title.
What is the Tribunal’s role?
In some cases, the Native Title Act requires the government intending to do the future act (‘the Government party’) and the person who has requested or applied for the act (‘the grantee party’) to negotiate with any person or body corporate who holds native title or has a registered native title claim over the area (‘the native title party’). This is referred to as the ‘right to negotiate’.
Where the right to negotiate applies, the Tribunal can assist the parties to reach agreement through mediation. If the parties are unable to reach agreement, any of them may apply to the Tribunal for a determination. The Tribunal will then conduct an inquiry and decide whether the future act: may be done; may be done subject to conditions; or must not be done. The Tribunal also conducts inquiries into whether the right to negotiate should apply, where the Government party thinks the future act can be progressed more quickly (known as the ‘expedited procedure’).