(c) Systemic reform The KLC submission addressed the inequities and fundamental power imbalance created by the failure to protect the right to free, prior and informed consent in the future act provisions of the Native Title Act: ‘Consent’ to ILUAs and other agreements under the NTA is a fiction in the context of a future acts system where a mining company has a 98% chance that their tenement will be granted even if there is no agreement with the native title holders. KLC The ANTaR submission also emphasised the need to shift the power imbalance in the future acts regime, specifically noting the need to allow more time for negotiation (Native Title Act, s 35(1)(a)) and to allow Tribunal determinations to include royalty agreements (Native Title Act, s 38(2)). Further, KLC noted that the inequities created by the future act provisions of the Native Title Act are compounded by the ‘chronic lack of resources available to native title holders to participate in negotiations with proponents’. KLC referred to its previous submissions in relation to native title reform, specifically noting that the future act processes ‘shift the cost’ of a business’ application to do business onto native title parties and therefore ‘to the extent that native title parties have the resources to participate in future act processes to protect native title rights, onto the public purse. This is an unacceptable cost shifting from private enterprise to public funding which should be addressed through urgent legislative reform.’ KLC also noted that proponents are not required to pay the invoices of representative bodies providing services to PBCs in future act negotiations and that such payment should be required by legislation before their interest is granted. FNLRS also discussed the need for significant reform of the native title system to facilitate just land settlements – FNLRS recommends reform to allow for comprehensive settlements and compensation more broadly than the Native Title Act currently allows. NTSCORP identified a need for institutional change in the approaches of state and territory governments to native title matters in order to achieve meaningful empowerment of Traditional Owners. In relation to the NSW Government, NTSCORP submitted that ‘positive outcomes are impeded by the inconsistent application of policy and procedures by the NSW Government, creating significant delays in positive consent determinations.’ Further, NTSCORP said that unlike other states and territories, NTSCORP has not been provided with, and is not aware of, a state policy for assessing connection evidence in the course of mediating a native title claim in NSW. The result is that the ‘requirement for establishing a credible claim per s 87 can be amorphous and inconsistent’. 56 Women in Native Title: Native Title Report 2024