The certainty believed to have been afforded by indigenous land
use agreements (ILUAs) has recently been put into question by the
decision of McGlade v Registrar National Native Title
Tribunal  FCAFC 10 (McGlade). The decision
established that all applicants for a native title claim must sign
an ILUA before it can be registered, creating uncertainty for
existing ILUAs that were registered without every applicant having
executed. In response, Federal Parliament has introduced the
Native Title Amendment (Indigenous Land Use Agreement) Bill
2017 (ILUA Bill). If passed in its current form, the Bill will
provide certainty on the execution of ILUAs by native title
applicants going forward. It will also ensure that ILUAs already
entered into will continue to be in force under current terms.
The Federal Court's historical stance on ILUA
The Federal Court decision of QGC Pty Ltd v Bygrave
(No.2) (2010) 189 FCR 412 (Bygrave) established the
position that—where an ILUA has been properly authorised by
the persons holding native title—it is sufficient if only one
of the applicants for a native title claim signs the ILUA for it to
be effective (even if the other applicants are unwilling or unable
Seven years later in McGlade, the Full Federal Court
has deviated from this position, finding that all applicants for a
native title claim must sign an ILUA for it to be effective. The
McGlade decision has brought about the following practical
Existing ILUAs executed by less than all of the
applicants—and registered on that basis—may not be
effective, casting doubt on the validity of approvals granted and
payments to be made in reliance of those ILUAs.
Where the applicants for a native title claim included people
who either refused to sign an ILUA, no longer had the mental
capacity to do so or were deceased, a change to those native title
applicants would be necessary to enable the ILUA to be executed
(even if the native title holders had authorised the ILUA).
Future ILUAs will require the agreement of all persons listed
as applicants for a native title claim.
Recognising the benefits of ILUAs to native title groups,
project proponents and governments, and conscious of the
uncertainty created by the McGlade decision, the
Commonwealth has introduced the ILUA Bill.
The ILUA Bill, if passed in its current form, will:
validate all ILUAs that were executed (or that were both
executed and registered) in reliance of Bygrave,
regardless of whether those ILUAs were executed by less than all
applicants for the native title claim, and
permit future ILUAs to be executed by
persons nominated or determined pursuant to the authorisation
process for the ILUA (which could be only some of the applicants or
persons who are not applicants), or
the majority of applicants for the native title claim following
valid authorisation (where there has been no nomination or
determination of people to execute the ILUA).
Where to from here?
The ILUA Bill has had its third reading in the House of
Representatives and the Senate has referred the Bill to the Legal
and Constitutional Affairs Committee, which will provide a report
on 17 March 2017. Submissions are currently being received with a
closing date of 3 March.
It seems highly likely that the ILUA Bill will be considered by
the Senate when Parliament resumes in a month's time. While
comments made in the House of Representatives indicate the Bill
will likely have bipartisan support from the major parties in terms
of its content, the Opposition has been critical of the speed with
which the Government has sought to pass this legislation.
Until the Bill is passed, the position in McGlade
remains the law. Parties negotiating ILUAs at present will need to
be mindful of the McGlade position and the potential
timing around the ILUA Bill, noting that debate isn't likely to
resume until 20 March at the earliest.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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