Webinar: Final Report of the Review of the Future Acts Regime

The ALRC held a webinar briefing for the Final Report of the Review of the Future Acts Regime. Titled ‘Fulfilling the Promise of Mabo: Reforming the Future Acts Regime in the Native Title Act 1993 (Cth)’, the report was tabled in the Commonwealth Parliament on Wednesday 24 June 2026. In a discussion moderated by ALRC Executive Director Ruth Barson, ALRC President Justice Mordy Bromberg and Commissioner Tony McAvoy SC gave an over of the Final Report, its recommendations and the potential impacts and benefits of implementing the ALRC’s recommendations for reform.

Transcript

This transcript has been edited for clarity.

Ruth Barson: Welcome everyone to the Australian Law Reform Commission’s webinar. I’m joined by Commissioner Tony McAvoy and ALRC President Justice Bromberg, who will walk you through our Final Report, ‘Fulfilling the Promise of Mabo: Reforming the Future Acts Regime in the Native Title Act. Before we go any further, I’ll hand over to Tony to acknowledge Country.

Tony McAvoy SC: Thank you. Ruth. We come to you today from the offices of the Australian Law Reform Commission, which are situated on the lands of the Wurundjeri and the Woi Wurrung Peoples. And we acknowledge their ancestors and their spirits, and we trust that you too, will acknowledge and respect the land from which you are all coming to this event.

Ruth Barson: Thanks, Tony, and thank you all for joining us. I’m Ruth Barson, the Executive Director at the Australian Law Reform Commission, and we’ll conduct today’s briefing webinar in a Q&A style.

We’ve had close to 300 registrations for today’s session, and we really appreciate those who submitted questions in advance. If you have further questions after the webinar, please do feel free to email us. By way of quick background, a future act is an act that affects native title rights and interests, typically where government undertakes an activity or authorises someone else to do so.

Tens of thousands of future acts occur each year, including things like granting mining or exploration tenements, issuing licenses, building public infrastructure, or compulsory acquisition of land. A future act is validated, that is legally authorised, when it meets the requirements of the future acts regime. That regime provides a number of processes for validation, which we which we refer to as pathways to validity.

Broadly, there are three of these pathways, and the questions and answers today will refer to each of these. There’s Indigenous Land Use Agreements [ILUAs]. This requires agreement of all parties and an ILUA validate any type of future act.

There’s the right to negotiate which applies to mining related acts, and some compulsory acquisition. Parties negotiate a section 31 agreement. If agreement is reached, that validates the act. If not, an arbitral determination by the [National Native Title] Tribunal can validate it.

And lastly, there’s statutory procedures. These are used for the majority of future acts. There are multiple subdivisions, largely based on industry, and each of these subdivisions provides its own pathway to validity. Each of these pathways include some form of protection for native title pathways, and these protections fall into two broad categories. Again, we’ll talk to these further in the questions and answers.

First, procedural or participatory rights, such as the right to notice, to comment, to be consulted, to object or to negotiate. And second, substantive rights such as redress or compensation for the impact of the future act on native title rights and interests.

For context to this inquiry, in response to a recommendation made in the Joint Standing Committee on Northern Australia’s report into the destruction of Juukan Gorge, on 4 June 2024, the Attorney-General referred this review to the Australian Law Reform Commission. We were asked to consult widely and develop recommendations to improve the operation of the future acts regime, particularly to address inequality, inefficiency and unfairness, to support fair negotiations and benefit sharing, and to better align the regime with the purpose of the Native Title Act and Australia’s international obligations.

At its core the task was to ensure the future acts regime delivers fair outcomes while supporting efficient decision making and economic development. This is the first substantial review of the future acts regime since the 1998 Howard Government amendments, following the High Court’s decision in Wik. In that time, the system has changed significantly. Native title has now been recognised across more than half of Australia’s land mass, and the future acts regime is increasingly central to how native title operates in practice.

It was in this context that we consulted with over 200 stakeholders and undertook extensive research to develop the Final Report. With that introduction, I’ll turn to our first question for Justice Bromberg, which goes directly to the heart of the report, delivering on the promise of Mabo.

Judge, one of the key findings of the report is that the future acts regime is not only unfair and inequitable, but key aspects of it are also discriminatory. In what ways does the current regime fail to provide native title holders with protections equivalent to other property rights holders?

Justice Bromberg: Ruth, I think that that can be best illustrated by going to some examples, and I will shortly. But I think before I do that, I’d like to set some background and context.

I think in this inquiry, we were driven by a range of principles, but in particular and relevant to this question, we were driven, firstly, by the need to recognise native title as property. That recognition occurred most recently in the High Court in Yunupingu, but for the purposes of discrimination law, native title was being recognised as property, since Mabo.

The second consideration that we’ve been driven by is that native title holders should have, and I’m quoting here from the High Court’s decision in the Native Title Act case, native title holders should have, and I quote, security in their enjoyment of their title to property to the same extent as the holders of freehold or private property. And that statement made by the High Court in that case was reflective of the underlying rationale for the Mabo cases themselves.

It’s also reflective of what article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination provides for, which is itself reflected in section 10 of our Racial Discrimination Act.

So, with those two principles in mind, if you like, we turn to future acts. Now, future acts, as I think your opening has identified, are acts which impair the enjoyment of native title rights. They are authorised by the law through the future acts regime, but they are nevertheless an infringement or impairment of native title rights. That infringement might involve anything from compulsory acquisition, through to someone walking across native title land.

Private property is also capable of being infringed in the same way. So, for instance, [on] a rural property, the rights of that property owner can be infringed by the government authorising the erection of a mobile phone tower. Or perhaps the erection of power lines across the property. So these kind of infringements are not unknown to the general law, and they are dealt with by the general law, as they are dealt with for native title under the Native Title Act.

The law can, and the general law does essentially, provide two protections to holders of property right. And those protections are the protections that you identified below. Firstly, procedural protections which the ALRC has identified in this way: a reasonable opportunity to participate in and influence decisions regarding whether the infringement should be allowed to proceed and, if so, how the infringement could be done in a matter which avoids or diminishes its effects on the property rights infringed. And secondly, substantive provisions, which is an entitlement to effective, timely, fair, and just redress or compensation for any harm or injury caused by the infringement.

Now it’s worth going to some history, because when originally enacted, ’93 Act did, through the statutory procedures validation pathways that existed at that time, did largely provide for equivalency of treatment. And it did that by providing to native title holders the same kind of procedural protection that would be available to a freehold title holder in the same or similar circumstances. Now, in ‘93, I think it’s true to say that, largely, formal equality was provided by the Act.

Although not substantive equality. And I might come back to that. But what happened in ‘98 was that amendments were made to the Native Title Act, which fundamentally altered the structure of the statutory validation pathways. Rather than being largely impact based, future acts were categorised into different subdivisions based on industry sector or pre-existing non-native title tenure.

That resulted generally in procedural rights no longer being subjected to this equivalency principle. And largely entrenched discriminatory treatment of native title property. I’ll give you some examples, and this is the system that we’ve got now. What was the amendments that were made in ‘98 still subsist. So, I’ll give you some examples of unequal treatment.

Take a renewal of a pastoral lease. Pastoral leases are pretty large generally, we might be talking about a pastoral lease for 500,000 acres or something of that kind. It’s got a 25 year term and the pastoralist wants the lease extended. Now, the only procedural protection on a pastoral lease renewal … I shouldn’t say ‘the only’, because, in fact, there is no procedural protection provided to native title holders in relation to a pastoral lease renewal. None whatsoever.

Ruth Barson: No notice.

Justice Bromberg: No notice, no right to be consulted, no right to negotiate. Nothing. Now compare that to the circumstances of freehold private title. If somebody’s got a lease on your farm and they want it renewed, they’d need your consent. And because they need your consent you’ve effectively got a veto. So, the comparison here is between no protection at all, and the protection that consent or a veto provides.

Another example. Pastoral lease [and] a new activity. So let’s assume that the pastoralist wants to create a cotton plantation on what is, at the moment, a pastoral lease. That’s a different activity, an activity that’s not included in the lease. And this is a real life example, this happens. At the moment, the only procedural protection given to the native title holders is a requirement that they be notified and that they be given an opportunity to comment.

Ruth Barson: And that’s in circumstances where the change of activity would have really serious impacts on native title rights and interests.

Justice Bromberg: Absolutely. I mean, all of the native title rights, including the rights to hunt, the right [to] forage, there’d be a range of rights that would be a, at the very least, substantially diminished, if not completely nullified. But all you get is a notice and an opportunity to comment.

If a new activity was to take place on a freehold lease, again, you’d need consent. You’d need the consent of the property owner before you could change their farm into a cotton plantation. Mining lease renewals are similar. The procedural protections to renew a mining lease don’t exist. There are none. Whereas, for instance, if you look to the position in Queensland, if the mining lease was on private property, you’d need either the consent of the owner of the property or a determination made by the Land Court.

So, there are some examples of the inequality of treatment, which in the end we categorise as not only unfair but discriminatory. There are many, many other examples.

Ruth Barson: Mordy, I might turn to one other aspect of the report’s findings. Tony, Justice Bromberg has spoken to the unequal treatment that’s embedded in the Act, but the report notes that implementation of its recommendations would not only enable equality before the law, but would also enable economic development to operate as mutually reinforcing objectives within an efficient, fair and non-discriminatory regime.

How do the recommendations move beyond the idea that protecting native title and enabling economic development are competing objectives?

Tony McAvoy SC: Well, thanks, Ruth, and thanks, judge. In answering that question, I would ask those who are with us today to, when they get a chance to look at paragraph 2 of the Summary Report, which neatly encapsulates a really fundamental principle.

And that is that, although the Native Title Act provides for general protection for native title in sections 10 and, in part, in section 11, through the future act regime, it provides for exceptions to that general protection. And it authorises that particular regime of exceptions to the general protection that’s provided by the Native Title Act. And indeed before that, Mabo number two.

And when viewed as exceptions to the general protection, and in much the way that the judge has just spoken about it, we understand that there is a fundamental principle about the way in which we are allowing imposition of actions on the native title rights of native title holders. And we need to consider the terms and conditions on which those exceptions are granted.

That doesn’t mean, though, that the protection of those native title rights, or the terms and conditions under which the exemptions are granted, are inconsistent with the economic development and a zero sum trade offer. I believe that that is an entirely false binary.

The Report reframes the system, or attempts to reframe the system, through the recommendations to provide for fairer negotiations and better outcomes for all parties through enabling benefit sharing and facilitating First Nations Peoples’ economic participation, while streamlining processes for proponents. And one of the truths that emerges from the Report, I think people will find, is that many of the delays, which we’ve received numerous submissions about, are the product of a system that is unfair. And fairness will allow parties to deal with the future act regime with much more certainty and in a way that is designed to bring about clearer outcomes.

So the notion that there is some binary position in the dialog has been rejected in the Report. And, and that’s the reason we say that we can have both outcomes.

Ruth Barson: That fairness is an enabler of efficiency.

Tony McAvoy SC: Yes.

Ruth Barson: Thanks Tony. Turning now to the substantive recommendations, judge. One of the principal recommendations of the Report is to repeal the existing statutory procedures and to replace it with an impact based scheme. What would be gained by aligning procedural rights more closely with the actual impact of a proposed future act on native title rights and interests?

Justice Bromberg: Well, Ruth, as I said earlier, currently under the statutory procedures validation pathway, future acts are characterised based on industry or sector or pre-existing non-native title tenure. So if you’re dealing with a future act in the mining industry generally, [the] procedural protection that’s provided is negotiation. The categorisation is not based on the impact that the future act is likely to have on the native title rights that will be infringed. What we’re proposing is a categorisation process for future acts, which would see future acts categorised into five groups. For the purposes of this question, I only need to deal with three of those groups.

Firstly, Group A, which is what we call a limited impact future act group. And the procedural protection that would be assigned or provided to native title holders in relation to a future act within the limited impact group would be a right to comment.

Then Group B is the lower impact future acts, so all of the future acts that are characterised as lower impact. The corresponding procedural protection would be the right to consultation.

And then group D would be where higher impact and future acts would sit, and the corresponding protection would be the right to negotiate, the section 31 right to negotiate. And if negotiations fail, access to the [National] Native Title Tribunal for an arbitral determination.

That characterisation aligns impact with the extent of the procedural protection required. You don’t need to provide the right to negotiate for a future act which is going to have low impact. The right to negotiate involves a lot of transactional costs, and it doesn’t need to be conferred, on every future act. We need a way of aligning the extent of the protection to the extent of the harm or injury. And that’s what we tried to do.

We’ve tried to align those two things through a categorisation process, which would involve assessments conducted by the NNTT in consultation with the relevant stakeholders. It would provide for a holistic assessment which can take into account cultural impact as well as economic impact. And that process would be subject to a criteria in the Act which would identify what is a lower impact future act. The advantage is that we would have a regime which is based on rationality, where currently there is very little rationality.

So I’ll give you an example of that. Let’s take a future act which is a water license. Now, at the moment, the procedural protection for a water license is notice and an opportunity to comment. Now that might be fine if the proponent is only taking a few litres of water a day, or even 1,000 litres of water a day. But, if the water license will drain the available water in the area, then notice and an opportunity to comment is obviously inefficient, it’s out of proportion to the impact. And a categorisation process, which is impact based would bring that back into proportion. So you might have some water licenses that only require consultation. You might have other kinds of water licenses that might require negotiation.

Ruth Barson: And in that way the recommendations really increase efficiency for all parties through an impact based categorisation.

Justice Bromberg: Absolutely. Because one of the things it does do is avoid over regulation. And the other thing it does do, it would replace the expedited procedure for instance, where at the moment the assessment is done case by case, future act by future act. Whereas under our scheme, certain kinds of, say, exploration licenses which are commonly dealt with in the expedited procedure, would be assessed as potentially lower impact.

And that would be an assessment made once, not an assessment made for every exploration license of that kind. And that would provide for substantial saving in terms of transactional costs.

The other thing, of course, that a impact based approach provides for is the substantive equality, that I spoke about earlier. And in particular, it’s an approach which is not blind to culture. Our current statutory procedures, regimes, other than where negotiation’s available, they are blind to culture.

Ruth Barson: And cultural impacts.

Justice Bromberg: And cultural impact. You know, a license, a license for someone to walk across property and go fishing, for instance, is blind to where that person might be walking. The procedural protections don’t take into account that that person might, in fact, be walking through a sacred site. This assessment process would do that and would categorise future acts by reference to a holistic assessment, which takes into account cultural runs.

Ruth Barson: And embeds substantive equality.

Tony McAvoy SC: Yes, I think, Ruth, there’s, there’s three other ways, that we can discuss briefly, in which an impact based framework would improve efficiency. Firstly, the reformed good faith standards, which will provide greater clarity around the conduct involving negotiations and hopefully mean fewer stalled or aborted negotiations.

Secondly, expanded functions for the National Native Title Tribunal in terms of their assistance. And that would include being able to provide early resolution of roadblocks and perhaps professional assistance in in reaching agreements. And thirdly, and very importantly, we’ve recommended an expansion of the Prescribed Body Corporate standing instructions to allow a greater flexibility to PBCs entering agreements, and making the native title holders side of the equation as quick as it can be, whilst not impinging on the obligations to do things culturally and legally appropriately.

Ruth Barson: Thanks, Tony. And so both fairness and efficiency are really baked into these recommendations, both the impact based recommendations and beyond. We’ve talked about the statutory procedures and the ALRC’s recommendations in relation to statutory procedures. Just going to question six now. I just wanted to go to agreement making first and then we’ll turn to redress and compensation.

The ALRC’s recommendations enhance agreement making in the future acts regime. They provide access to agreement making assistance and other dispute resolution processes and impose, as you were saying, conduct and content standards. Tony, how would implementation of these recommendations help to ensure that injustices such as the destruction of Juukan Gorge are prevented in future.

Tony McAvoy SC: Well, firstly, the recommendations propose that there be a prohibition on gag clauses, the type that were used in the Juukan Gorge instance. And that, of course, were the focus of much discussion in the Joint Standing Committee inquiry into the destruction of those caves. The clauses or gag clauses that restrict native title parties’ ability to raise grievances or pursue remedies outside of the terms of the agreement itself are not conducive to the type of transparency that’s necessary to ensure that these places of importance are given their due protection. But other such matters, not just in terms of site protection.

Second, the parliamentary inquiry into the destruction of the cave at Juukan Gorge also identified an acute inequality of bargaining power as a major issue, and many of the recommendations in this Report seek to address that. And hopefully will help parties to negotiate on a more even footing so that fair agreements can be reached. And with that, we anticipate there will be greater confidence in the system, which will also lead to greater efficiency in the processes.

And the third response, I suppose, to the Juukan Gorge inquiry is for there to be good faith conduct standards, which place a greater emphasis on the behaviour of parties in the negotiations, and allow for the information sharing, reducing some of the other imbalances that exist in terms of ensuring that all parties are informed about the processes at play. And this would include access to the National Native Title Tribunal dispute resolution support as a means of also trying to address that power imbalance that obviously and clearly exists in native title negotiations.

Ruth Barson: Thanks Tony. We’ve talked about procedural protections, and I now want to turn to substantive protections. Justice Bromberg, the ALRC found that, at the time of writing, the future acts regime had failed to provide effective, timely, fair and just redress. That while agreement making has provided some redress for the harm of validated future acts, for the vast majority of future acts validated over the 32 years of the operation of the regime, not a single dollar of compensation for a future act had been awarded to native title holders through the statutory compensation scheme.

Just with the slight caveat that the report was completed prior to the Yindjibarndi Federal Court of Australia decision. But putting that single example aside, I think the finding still applies. Judge, how do the recommendations address longstanding concerns about compensation, liability and access to redress.

Justice Bromberg: Ruth, first can I talk about those long standing concerns and why they are concerns? And there are two things that currently impede fair and timely redress for future acts that are validated.

The first is, putting aside the negotiation pathways, for the statutory procedures pathways there is no capacity for upfront compensation to be provided. The only capacity to obtain compensation is by accessing the statutory compensation scheme in the Native Title Act. That involves an application to the Federal Court. Apart from Yindjibarndi, which actually it did involve future acts, but it involved a failure of agreement making to identify the compensation payable.

But apart from that, for all of those future acts that are validated through the statutory procedures pathways, compensation has been theoretical. It’s available but hasn’t been accessed. The reason that it hasn’t been accessed is that the compensation scheme is not very accessible. I mean, it requires an application to the Federal Court and the, the compensation that might be awarded for some of these future acts are not necessarily millions of dollars.

I mean, a lot of the future acts are small acts, acts of small impact. And to take an application to the Federal Court for an act which, for which you might obtain minimal compensation, not exactly advisable.

Ruth Barson: No, the legal fees might outstrip the compensation.

Justice Bromberg: I mean, you could bank them all up. And that, I think, is what’s going to ultimately happen. But, the, the statutory compensation scheme is, I think, can fairly be said to be essentially inaccessible at the moment or has been, has proven to be.

The second problem with fair and timely redress is in relation to the agreement making stream. Because if an agreement can’t be reached between the parties, it’ll go to an arbitral determination before the [National] Native Title Tribunal. And, either through lack of capacity or perhaps potentially a misunderstanding of its power, the NNTT has not provided financial conditions when making an arbitral determination. So it’s got the capacity to impose conditions on a determination that a future act can be done. But it’s taken the view that it can’t impose financial conditions, including benefit sharing conditions. Now, we’ve sought to solve those two problems in two ways.

Firstly, in relation to future acts that are validated through the statutory procedures validation pathways. And here we’re talking about the vast majority of future acts, those that will be categorised as lower impact future acts will be the subject of an assessment. At the same time that those future act categories are assessed as lower impact categories, an upfront compensation figure will be identified and a condition of the doing of that future act will be that the proponent pay the upfront compensation identified as being appropriate for that kind of future act. So that will provide for timely and hopefully fair compensation.

In relation to the problem at the NNTT level, we’ve made recommendations that make it clear that the NNTT has the power to impose financial conditions when it makes an arbitral determination, and have suggested that the law be changed, including to provide that those financial conditions can be benefit sharing conditions.

So that’s the way that we’ve sought to address it. I should say, just if I may. One of the other long standing concerns, I think that should be better identified is the financial uncertainty that this regime has brought to play. I mean we’ve got something like 20 years of past acts that have not yet been through the compensation regime.

Ruth Barson: And we’re probably talking about millions of acts.

Justice Bromberg: Yes. And we’ve now got 32 years of future acts that are yet to engage with the statutory compensation regime. Now, largely state and territory and Commonwealth governments are on the hook for compensation. Not entirely, but largely.

Ruth Barson: Compensation liability.

Justice Bromberg: There’s no there’s no statute of limitations here. At some point in time when native title parties get their act together, I suspect that this compensation will be claimed. And as time goes by, the capacity of government to pass through compensation liability to the actual proponents who benefited from the future acts will diminish.

Ruth Barson: And in that instance, the liability will be required to be paid by the state and territory government.

Justice Bromberg: Largely, yes. So there must be real concern here about unfunded liability, unfunded, unidentified liability. And our reform would fix that for the future. Won’t fix it for the past, but it will fix it for the future, because compensation will largely be paid up front.

Ruth Barson: Thanks, judge. Could I stick with you and take a different turn and look at international law obligations? The ALRC found that wholesale reform of the future acts regime is required to better provide compliance with Australia’s international obligations.

How does the report deal with the concept of free, prior and informed consent? And thank you to those of you who ask questions in relation to this. How does the report deal with that concept within future act negotiations?

Justice Bromberg: I should say at the outset there are strongly held views I think about FPIC. And I think it’s fair to say that there are contested views as to how FPIC ought to be applied and the extent to which Australia is obliged to apply UNDRIP and its utilisation of FPIC.

We have sought, and I think succeeded, in making recommendations which, in our view, are compliant with UNDRIP. In relation to FPIC, that’s based on a construction of UNDRIP which concludes that FPIC is an objective identified by the Declaration, by UNDRIP. And that the substantive right, through which the objective of FPIC has been operationalised, if you like, is article 32 of UNDRIP. And we have made recommendations which are, in our view, consistent with article 32 of UNDRIP. Article 32 is the article that requires that impairment of the rights of Indigenous people should not occur unless fair and appropriate redress is available to be provided.

So what we’ve done is we’ve made recommendations as to how the section 39 criteria in the Native Title Act should be amended. That’s the criteria that’s applied by the [National] Native Title Tribunal on an arbitral determination. And the criteria, as we would propose it, would positively require the NNTT to be satisfied if it is to allow the future act to be done, it would need to be positively satisfied that fair and effective redress is available to be provided to the native title holders for the infringement of their property rights. So it’s complicated, and I ask people to read our Report where we set out the arguments.

But the way we have dealt with FPIC is we think the way that UNDRIP itself in substance deals with it. And that is by operationalising it through article 32, and at that point in agreement making where an arbitral decision needs to be made, that is where a decision can be made that would override the refusal of native title parties to provide consent. We have adjusted the criteria so that it becomes a criteria which does properly operationalise FPIC.

Ruth Barson: And I think more broadly many of the recommendations are aimed at addressing inequality of bargaining power, really with the goal of placing native title holders in a better position to give their consent.

Justice Bromberg: And one other important recommendation is that, and this is really based on non-discrimination rather than FPIC, but in relation to future acts that need to go through the statutory procedures validation processes, where that kind of infringement if it was done in relation to private property would require the consent of the private property holder, the future act will also require the consent of the native title holders. So essentially what that means is, where a private property holder has a right of veto a native title holder will have a right of veto. That’s not so much based on FPIC, but based on the idea of equality of treatment.

Ruth Barson: Thanks judge. Tony, I wanted to turn to the novel pathway that we recommend in the Report. We recommend a new pathway to validity, Native Title Plans, and describe these as an enabler of self-determination, a way of shifting from reactive decision making to proactive planning by native title holders. Tony, are you able to please speak to what are Native Title Plans and what are they intended to achieve?

Tony McAvoy SC: This set of provisions that we anticipate, and that form the recommendation are a new pathway that’s intended to be inserted into the Act. A new pathway to validity, and something that the native title holders can use as a planning tool and thereby inform those that wish to undertake acts which will affect their native title to understand the environment within which they’re coming into.

And so that would allow, just as it does with other planning tools, local environment plans for example, it would allow the native title holders to proactively develop their values and priorities and land use preferences so that they align with their aspirations. To communicate that to all those who might want to come and deal with and access their lands, and ensure that the views of the native title holders are known upfront.

And we think that this will greatly enhance both the understanding of the aspirations of the relevant community, and can lead to greater efficiency in that, in those areas where the native title holders are pro-development and are looking to use some of their lands or some of their resources in a particular way, that will allow them to invite those that are wanting to work with them to come and talk, knowing that the values are aligned.

The clarity for proponents I don’t think should be underestimated in its ability to give proponents the upfront confidence that they need to make the significant investments in time and energy, which are often part and parcel of some of the substantial developments that happen on native title land. And I could see this being a very valuable tool. And we’ve recommended that there be some attempts to facilitate the development of such plans and to make sure that they work in a way that is empowering for communities, but also information giving for proponents.

Ruth Barson: Tony, before asking Mordy to wrap up today’s session, I just wanted to ask you one final question, which is: in your view, to fulfill the promise of Mabo, what are the most important recommendations that this report makes and why?

Tony McAvoy SC: Firstly, it has to address the discriminatory aspects of the existing framework. We can’t let this opportunity go by where that which is plainly obvious is not addressed. And so in addressing the discriminatory aspects, but then ensuring that the system works in a much more efficient manner, we can unlock potential for everybody. If those two aspects are dealt with, then I think the potential that sits within the proposal for Native Title Plans really can then come to the fore and unlock a different future for native title holders and proponents and governments indeed.

Ruth Barson: Thank you, Tony. Judge, with the final three minutes that we have left in this session, I’ll hand over to you to close.

Justice Bromberg: Thank you, Ruth. In closing, can I thank all of the attendees out there? I understand there’s many hundreds of you, and I’m pleased to understand that. We are dealing with important issues, as I think we’ve tried to identify. Important not just to native title holders, but also important in terms of providing a more streamlined and efficient system for the authorisation of infringements upon native title. I encourage you to place close attention to our Report. We’ve only been able to give you a glimpse, really, of some 86 recommendations that go to a far wider and broader set of issues than those that we’ve been able to deal with today. So I would encourage you to inform yourselves of the totality of our Report and the recommendations therein contained.

This is my first public opportunity to thank the Commissioner on this Inquiry, Tony. Tony has provided enormous insight and has been of great assistance to me, and I know to the whole of our native title team. And Tony, we know well how difficult it has been for you to provide the time that’s been necessary. We’ve occupied a fair bit of that time over the last 18 months and it’s been invaluable. So thank you, Tony.

And then to the magnificent team that we’ve had on this Inquiry. It’s been a relatively small team. That’s essentially a function of the resources that were provided to deal with these issues. But the team, and I’m sure you’ll see this when you go to the Report, has not only been able to get across really hundreds of issues, but each one of those issues has involved a great deal of complexity. There’s nothing simple about the future acts regime. Our hope is to make it simpler, but our team of law reformers has done an incredible job in firstly identifying the problems and then helping us to formulate the solutions. And I thank the team for their determination, endurance, effort and great skill. And the ALRC is much better for it.

Lastly, can I say this Report is the ALRC’s advice to government. It’s ultimately a matter for government as to how it chooses to progress implementation. Our hope is that the recommendations provide a clear, principled pathway to finally delivering on the promise of Mabo, a future acts regime that realises equality before the law, supports genuine and fair agreement making, enables efficiency and economic development, and also enables First Nations Peoples to share in the benefits of the development of their Country.

Thank you for participating.