In a major report released Wednesday, the Australian Law Reform Commission has found unfairness, inefficiency, and discrimination in the 'future acts' regime; the law that regulates how and when native title rights and interests can be lawfully infringed by various acts and economic activities, mostly done by the mining and pastoral industries and by governments providing essential public services.

The ALRC's Fulfilling the Promise of Mabo - Reforming the Future Acts Regime in the Native Title Act 1993 final report found the regime fails to provide native title holders with fundamental protections when their property rights are infringed, undermining their ability to protect their interests, safeguard their culture and share in the economic benefits of development.

In addition, under the system government and industry face complex, uncertain and inefficient approval processes which result in wasted resources and significant delays to economic development.

Traditional Owners across Australia owed tens of billions of dollars in compensation

The National Native Title council said the report highlights that Traditional Owners are denied equal and fair access to compensation.

Traditional Owners across Australia are owed compensation in the tens of billions of dollars.

To address the issues identified, the report makes 86 recommendations to reform the future acts regime so that it can operate in a way that is "efficient, fair and non-discriminatory", the ALRC said.

The NNTC said that if adopted, the recommendations would reform the Act to make it fairer and more just into the future, but the Federal Government will "need to use this moment to remedy the past".

Native Title Act is 'discriminatory in the way it deals with our property rights'

National Native Title Council CEO Jamie Lowe noted the report found the Native Title Act is "discriminatory in the way it deals with our property rights as First Nations people in this country".

"The current laws have not given us a clear pathway to access the tens of billions of dollars of compensation native title holders are owed across the country," he said.

"Traditional Owners have watched wealth being extracted from their land at scale, while the compensation they are entitled to has been withheld by governments and mining companies.

"Traditional Owners want the federal government to demonstrate leadership and come up with more equitable pathways to access compensation owed."

Mr Lowe said the 86 recommendations are "a good start".

"They put forward 86 ways to make the Act more efficient, more accessible, less adversarial and fairer for native title holders. But Eddie Mabo, David and Sam Passi, James Rice and Celuia Salee and the people of Mer didn't take the Crown to the High Court to get what the Native Title Act gives us. There is unfinished business in the way the Crown treats our property rights," he said.

"Currently Traditional Owners are left fighting costly legal battles through the courts. Native title holders face significant barriers to accessing compensation. Traditional Owners must navigate complex, costly land analysis, gather extensive evidence, and often spend decades in court. Meanwhile, historical liabilities owed by all levels of government continue to accrue interest."

'Unpaid compensation represents real, tangible harm'

Mr Lowe noted the report arose from the inquiry into the destruction of Juukan Gorge by Rio Tinto.

"The Commission's substantial review provides 86 recommendations address the economic impact for First Nations communities when our rights are infringed and compensation goes unpaid," he said.

"Unpaid compensation represents real, tangible harm in the form of lost economic opportunity and foregone investment options.

"We want a National Compensation Framework to remove barriers to accessing compensation owed. The Framework would establish clear and consistent standards to compensate native title holders when their rights are impacted. That would deliver greater certainty for both native title rights holders and project proponents."

On the tabling of the report in federal parliament on Wednesday, President of the Australian Law Reform Commission, Justice Mordy Bromberg, said the future acts regime "fails to provide native title holders with two fundamental protections when their property rights are infringed: fair and reasonable participation in decisions that affect those rights, and fair and timely compensation when infringement occurs".

"Meanwhile, governments and proponents face delays, complexity and mounting compensation liability — we can, and should, do better," Justice Bromberg said.

'Future acts regime is not fit for purpose and is failing to protect native title rights'

Commissioner Tony McAvoy SC said that throughout this inquiry, the ALRC consistently heard that the future acts regime is "not fit for purpose and is failing to protect native title rights — undermining opportunity, culture, lore and spirituality".

"Our reforms are designed to deliver the fair processes and fair outcomes that communities deserve. They chart a path to a system where equality and economic development are achieved together," he said.

"A future acts regime that is streamlined, efficient and predictable will deliver shared benefits for communities, regions and industries around the country."

The ALRC said that if implemented, the Commission's recommended reforms would "deliver a regime that fulfils the promise of the High Court's Mabo decisions by: ensuring equality before the law and compliance with Australia's international obligations; supporting fair processes and outcomes for native title parties; and providing greater certainty, efficiency and streamlined decision-making for governments and industry".

Key reforms recommended in the report:

• Replacing wasteful and inefficient approvals processes with an impact-based approvals process that rationally determines the level of procedural protection owed to native title holders based on the nature and impact of the proposed future act — rather than an irrational and inflexible criteria based largely on which industry is seeking the approval.
  
  
• Providing native title holders with substantive protection through fair, just and timely access to compensation.
  
  
•  Improving the framework for agreement-making and arbitral determinations as pathways to approval, through enhancing equality of bargaining between parties and expanding the National Native Title Tribunal's ability to assist parties in negotiating agreements and its arbitral capacity to resolve disputes fairly and in accordance with Australia’s international obligations.
  
  
• Introducing Native Title Plans to enable native title holders to proactively contribute to the available approval processes.
  
  
• Providing clearer and more accessible pathways for compliance, enforcement and legal remedies.
  
  
• Improving resourcing and costs support for Prescribed Bodies Corporate (PBCs) to enable native title holders to participate effectively in the future acts regime, as well as to reduce delay and other inefficiencies experienced by industry as a result of under-resourcing.