Legislative fix for McGlade native title decision to confirm ILUAs due this week

The Commonwealth Government is moving to confirm the validity of more than 120 Indigenous land use agreements (ILUAs) that were registered despite not all members of the registered native title claimant having executed the agreement.   

The Commonwealth has indicated that it will also ensure that ILUAs lodged for registration both before and after the recent McGlade decision without all members of the registered claimant having signed the agreement may be considered for registration.  The McGlade decision cast real doubt on the validity of numerous mining and petroleum tenements and other interests granted in reliance on the ILUA registration process. 

The Federal Attorney-General has announced that the Commonwealth will introduce legislation "urgently" (which will probably be this week) to reverse the effect of the decision in McGlade v Native Title Registrar [2017] FCAFC 10  and legislatively reinstate the Federal Court's decision in QGC Pty Limited v Bygrave (No. 2) [2010] FCA 1019. 

These amendments would seek to achieve three objectives: 

• confirm the validity of agreements already registered on an understanding of the law as it stood on the basis of the Bygrave decision;
• for future agreements: removing the requirement for all members of a registered claimant to sign an ILUA; and
• for agreements currently lodged with the Native Title Registrar but not registered: these agreements will be considered ILUAs capable of being considered for registration by the Native Title Registrar although they have not been signed by all members of a registered claimant.

Why a legislative fix is needed to confirm the validity of ILUAs 

The decision of the Full Court  in McGlade overturned the Bygrave decision, and thereby reversed what for the last six years has been regarded as settled law on who needs to sign an Indigenous land use agreement on behalf of native title parties.

Previously under Bygrave, an agreement could be registered as an ILUA provided one or more members of the registered claimant had been named as parties to the agreement. 

The Full Court in McGlade however held that, where the area covered by a proposed ILUA overlaps with the area of a registered native title claim, any agreement entered into with respect to that area can only be regarded as an ILUA if it has been signed by each individual named as a member of the registered claimant for that claim.  In effect, an agreement could not be regarded as an ILUA, even if the only members of the registered claimant who had not signed the agreement were incapacitated or even dead. 

Estimates vary, but it is understood that more than 120  agreements could have been registered since September 2010 in reliance on Bygrave.  The problem could be even worse, however, because pre-Bygrave, the Native Title Registrar did not deny ILUA registration applications where the only missing signatures were those of deceased members of the registered claimant.  Any finding that such ILUAs are invalid would imperil both the resources tenements or other "future acts" consented to in the agreements, and the benefits or other opportunities provided to native title parties in consideration for these consents. 

What you should do now 

The Bill to amend the Native Title Act is expected to be introduced this week, so it could be passed and be in effect very soon. Until then: 

• any ILUA in progress will be in suspended animation; and
• proponents (whether public or private) as well as native title parties will need to consider if their ILUAs are affected.

No decision has yet been made as to whether or not to seek special leave to appeal to the High Court against the McGlade judgment.