Castledine Gregory Law and Mediation

Legislative action proposed to overcome ILUA validity questions


In a previous update (South West Native Title Settlement – Agreements struck down), we briefly reported on the decision of the full Federal Court in McGlade v Registrar National Native Title Tribunal which declared that four of the six Indigenous Land Use Agreements (ILUA’s) comprising the South West native title settlement could not be registered.  This was on the basis that not all of the members of the registered native title claimant (RNTC) for each of the relevant claims had signed the ILUAs.


The Federal Government has now moved to address this issue by introducing the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017.  The Bill has recently been scrutinised by a Parliamentary Committee which issued its final report on the proposed legislation on 20 March 2017.


Purpose of the Bill


In the explanatory memorandum for the Bill, it is noted that the McGlade decision created a level of uncertainty about the status of area ILUAs which meant that:


  • area ILUAs previously registered without the signatures of all members of the RNTC (including those who were deceased) were agreements that did not meet the requirements of ILUAs as defined under the Act; and
  • area ILUAs lodged for registration which did not comply with McGlade could no longer be registered.


The primary objectives of the Bill were explained to be to:


  • confirm the legal status and enforceability of agreements which have been registered by the Native Title Registrar on the register of ILUAs without the signatures of all members of the RNTC;
  • enable registration of such agreements which have been made but have not yet been registered on the register of ILUAs; and
  • ensure that in the future, area ILUAs can be registered without requiring every member of the RNTC to be a party to the agreement.


What is at stake?


In addition to the inability to register all of the ILUAs making up the South West settlement, it has been suggested that many other ILUAs previously included on the register (perhaps up to 150) had their validity cast into doubt by McGlade.  It has also been suggested that the McGlade decision could preclude the registration of a proposed ILUA relating to the Carmichael coal mine and rail project in far north Queensland.


Finally, it has also been suggested that the implications of the McGlade decision may ripple outwards further to include problems with future act agreements which have not been signed unanimously by all members of the RNTC.


How does the Bill aim to solve the problem?


The Bill proposes the following changes to the ILUA registration process:


  • Paragraph 24CD(2)(a) of the Native Title Act, which requires that all ‘registered native title claimants’ be parties to an area ILUA, would be repealed and replaced by a new paragraph which would allow the native title claim group to nominate which members of the RNTC are required to be parties to the area ILUA, or where no persons have been nominated, it would be sufficient for a majority of members to be parties to the area ILUA;
  • Part 2 of the Bill proposes amendments in relation to agreements that may be affected by the McGlade decision by securing the validity of existing agreements which have been registered on or before 2 February 2017 but do not comply with the McGlade decision; and
  • Enabling registration of agreements which have been authorised, registered or lodged for registration on or before 2 February 2017 but do not comply with the McGlade


Some aspects of the Bill propose to deal with matters not arising from the McGlade decision, including a proposal to amend sections 251A and 251B of the Act to enable claim groups to choose whether to use a traditional decision-making process (if one exists) or agree on an alternative decision-making process.


The Committee’s view


In the report of the Committee recently handed down, a majority of members supported those aspects of the Bill which would effectively reverse the consequences of the McGlade decision.  However, the Committee considered that the proposed amendments to sections 251A and 251B of the Act were not urgent and should be removed from the Bill for later consideration.


The Committee recommended that the Commonwealth consider whether it is necessary (as a separate reform) to make further amendments to the Act to ensure the McGlade decision does not affect the validity of future act agreements (which are more widespread than ILUAs).  It was also recommended that consideration be given to provisions which ensure the ‘minority viewpoint’ is given due consideration where an ILUA involves significant consequences (such as the surrender of native title rights).


What will happen next?


Given that the essential aspects of the Bill have bipartisan support, it is likely that the Bill will be passed by Parliament in the near future.  Following passage of the legislation, it is understood that the ILUAs involved in the South West native title settlement will need to be relodged for registration and dealt with in accordance with the law as amended.  The processes involved in restarting the registration process will mean that some considerable time will still be required before those agreements could achieve registration.


Native title claim groups will need to consider how this new law will affect their current decision-making processes, particularly in relation to the provision enabling claim groups to nominate which members of the RNTC are required to be parties to the area ILUA.


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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