Native Title – Individual ‘power of veto’ jeopardises ILUAs

WHO SHOULD READ THIS

• All proponents and Traditional Owners who are a party to an existing Indigenous Land Use Agreement (ILUA) or intend to enter into an ILUA.

THINGS YOU NEED TO KNOW

• There has been a change in law – McGlade v Native Title Registrar [2017] FCAFC 10 (McGlade). All applicants who comprise a ‘registered native title claimant’ must execute an ILUA for that ILUA to be effectively registered.
• Until and unless this decision is overturned by appeal or legislative change, the impact is far reaching in respect of:
  • registered ILUAs and the validity of future acts done under them, and
  • the registration of future ILUAs.

WHAT YOU NEED TO DO

• For those in the process of obtaining or registering an ILUA – ensure that all named applicants execute the ILUA.
• For those who are party to an existing ILUA – review your agreements and consider your position. Importantly, did all of the applicants execute the agreement?

Background

In 2010, the Federal Court in QGC Pty Ltd v Bygrave (No.2) [2010] FCA 1019 held that an ILUA could proceed to registration with the National Native Title Tribunal (NNTT) without the signatures of all named applicants.

Since then, it has been common practice of the NNTT to accept ILUAs for registration where some, but not all, of the applicants have executed the agreement (and, of course, the balance of the registration requirements have been met).

The Full Federal Court in McGlade has now reversed this position. An ILUA now cannot be registered unless it is signed by each and every named applicant.

This decision has potentially far reaching impacts on parties operating under ILUAs without the signature of all applicants and, critically, on parties seeking the registration of ILUAs that have been executed by some but not all of the named applicants.

The decision

The Court declared that four ILUAs lodged for registration with the NNTT were not valid ILUAs for the purposes of the Native Title Act 1993 (Cth) (NT Act), because some of the named applicants who comprise the ‘registered native title claimant’ had not executed the agreement (even as a result of death).

The Court found that:

• for the agreement to be validly registered as an ILUA, all individuals comprising the ‘registered native title claimant’ must sign it
• resolutions of the community do not have the effect of overriding that fundamental principle
• if an applicant unreasonably refuses to execute an ILUA against the wishes of the claim group, that applicant can only be removed by application of the claim group under section 66B of the NT Act, and
• deceased applicants must also be removed and replaced under section 66B prior to the making of the ILUA.

Final thoughts

‘While this may mean that any one of the persons who jointly comprise a registered native title claimant can effectively veto the implementation of a negotiated area agreement by withholding their signature to the agreement, that is what the NTA recognises as possible. Whether the NTA should provide for some mechanism, apart from s 66B or in addition thereto, for responding to the types of agreement making issues raised in these proceedings, is a policy issue for the Parliament to consider, not this Court.’

-The Honourable North and Barker JJ (at para 265)
(our emphasis)

We expect this decision will be appealed. The unanswered questions raised threaten the validity of persisting future acts. Legislative amendments to overcome these issues have been on the table for some time. No doubt McGlade will act as a catalyst in that debate.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.