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
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  FCAFC 10 and legislatively
reinstate the Federal Court's decision in QGC Pty Limited v
Bygrave (No. 2)  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
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
Why a legislative fix is needed to confirm the validity of
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
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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