On 2 February 2017, the Full Federal Court handed down the decision in McGlade v Registrar National Native Title Tribunal  FCAFC 10, declaring that four of the six Indigenous Land Use Agreements (ILUAs) comprising the South West Native Title Settlement cannot be registered. The basis for the decision is that not all of the ‘named applicants’ to the relevant native title claims had signed the ILUAs.
This decision has enormous implications as it overturned the established practice around the registration of ILUAs, as many ILUAs that have not been signed by all ‘named applicants’ have been accepted for registration in the past.
A number of native title claims have been brought by Noongar groups in the South West of Western Australia. The State and those claimant groups negotiated agreements which provide for full and final settlement of all those claims. This agreement is made up of six ILUAs.
Section 24CD(1) of the Native Title Act 1993 (Cth) (NT Act) states that with respect to the making of ILUAs, ‘all persons in the native title group …must be parties to the agreement’. Where there is a native title claim on foot but no determination has been made, the reference to ‘native title group’ is to persons named on the Register of Native Title Claims as applicants (named applicants). The named applicants are members of the claim group who have been authorised by the group to act representatively as ‘applicants’ for them on the claim.
In February and March 2015, six meetings were held to enable the claimant groups to authorise each ILUA. At these meetings, resolutions were passed authorising the making and signing of the ILUAs. The State then applied for the registration of the ILUAs.
Four of the six ILUAs (being the Wagyl Kaip and Southern Noongar, Ballardong, Whadjuk, and South West Boojarah #2 ILUA) were not signed by all the named applicants, some of who opposed the ILUA, and one who was deceased.
The Full Court’s finding
The main issue was whether an ILUA can be registered if some of the named applicants have not signed the ILUA. This issue was previous considered in QGC Pty Ltd v Bygrave (No 2) (2010) 189 FCR 412 (Bygrave). In that case, Reeves J determined that ILUAs can still be registered if some of the named applicants did not sign, as long as it was properly authorised by the claim group. Since Bygrave, many ILUAs which were not signed by all named applicants have been registered.
The Full Court overturned the decision in Bygrave, and held that it is not enough for the claim group to have authorised the named applicants to sign; all named applicants must individually sign the ILUA.
In reaching its conclusion, the Full Court placed emphasis on the references to ‘all persons’, and ‘must be parties to the agreement’ in section 24CD(1). In order to be a party to an agreement, that party must sign the agreement. The Full Court considered that the reference to ‘parties’ is to the parties in their own, individual right. As such, each of those parties (each of the named applicants) must be a signatory to the ILUA.
If one or more of those parties refuse or is unable to sign an ILUA for whatever reason, the ILUA cannot be registered as an agreement for the purposes of the NT Act. This extends to circumstances where named applicants have died or lost mental capacity.
The Full Court also noted that there are policy justifications for taking this approach. Given that the claim group has authorised members of the group to act representatively as the named applicants, it follows that these people have a special responsibility under the NT Act towards the claim group in the making of agreements under the NT Act.
The Full Court acknowledged that the outcome whereby a single member of a claim group may veto an ILUA by withholding their signature may be considered inconvenient. However, this is what the current NT Act permits. In those circumstances, claim groups may seek to replace a named applicant under section 66B of the NT Act.
Implications of the decision
There are many ILUAs which have not been signed by all named applicants that have been accepted for registration, and tenure granted by States and Territories in reliance on those ILUAs. Given this, it is possible that legislative amendments will be made to clarify that signatures of all named applicants are not required before registration (as long as the ILUA has been authorised).
However, in the meantime, parties to existing ILUAs should review those agreements and determine whether all parties have signed the agreement, and consider the implications if they have not.
Native title claim groups who are looking to authorise ILUAs should ensure that all named applicants are willing to and capable of signing the ILUA. Otherwise, the group will need to take steps to replace those applicants under section 66B of the NT Act, before an ILUA can be registered. Claim groups should also ensure that any deceased persons are removed as named applicants as soon as practicable.
Disclaimer: The information contained in this update is not advice and should not be relied upon as legal advice. Castledine Gregory recommends that if you have a matter in relation to which legal advice is required, you consult with your legal adviser.
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