Australia: Majority rules! Parliament acts to make Indigenous land use agreements viable again

What has just happened?

The Senate has today passed legislation that will enable Indigenous land use agreements (ILUAs) to be registered even if they have not been executed by all of the members of an affected registered native title claimant (RNTC) - provided the ILUA has the support of the broader native title claim group. The new legislation was passed in response to the decision of the Full Court of the Federal Court in McGlade v Native Title Registrar [2017] FCAFC 10 (McGlade Decision).

The new legislation, on its commencement, will:

• remove any doubt about the lawfulness of the potentially hundreds of ILUAs that were registered before the McGlade Decision on the strength of existing judicial precedent, which did not require unanimity among the members of an affected RNTC;
• as a consequence, confirm the validity of the very many mining and petroleum tenements and other interests that have been granted in reliance on ILUAs that were registered despite not having been signed by every member of every affected RNTC;
• ensure that ILUAs that were lodged for registration before the McGlade Decision was handed down, on 2 February 2017, cannot be refused registration on the sole ground that they do not include a "full set" of RNTC signatures; and
• specifically confirm that the ILUAs at issue in the McGlade Decision, which were four of the six ILUAs intended to implement the Noongar People's ground-breaking South West Native Title Settlement with the State of Western Australia, cannot be refused registration solely because seven of 46 affected RNTC members decided not to (or could not, because they were incapacitated or deceased) sign the ILUAs.

Why did we need the new law?

The McGlade Decision confirmed that individual members of a RNTC for an area have a right to veto decisions by their native title claim group to enter into binding ILUAs in relation to that area - whether with governmental, industrial, pastoral or other actors. The decision was seen by many as empowering small numbers of individuals to (for any reason, no matter how altruistic, or for no reason at all) prevent the making of ILUAs with the potential to deliver:

• (in the case of ILUAs designed to underpin major developments, such as Adani's agreement with the Wangan & Jagalingou People for the massive Carmichael Coal Mine & Rail Project) significant financial benefits and opportunities, lasting economic growth and other concrete outcomes to native title communities as well as to society at large; and
• (in the case of ILUAs designed to implement both consent determinations and voluntary settlements of native title claims, such as the Noongar People's proposed Settlement ILUAs with the State of Western Australia) opportunities for Indigenous communities to realise their ambitions for self-determination and to take control of their destinies.

Widespread dismay with the McGlade Decision seems particularly to have resulted from the availability of this power of veto to individual members of a RNTC, irrespective of the proportion of their native title claim group who support the making of the ILUA.

While the McGlade Decision concerned only the Noongar Settlement ILUAs mentioned above, an application of the Full Court's decision suggested that all existing ILUAs registered without a full set of RNTC signatures (and it was estimated that there may have been hundreds of these) may - inadvertently - have been registered invalidly.

Given the nature, quantity and scale of the interests that were purportedly validated by these ILUAs, many thought this consequence of the McGlade decision would spell catastrophe for the Australian economy. Bearing in mind the magnitude of the benefits and opportunities provided to native title claim groups under these agreements, any suggestion that the ILUAs were invalid could also have been devastating for Indigenous communities around the country.

How have these issues been solved?

While the majority of the Full Court acknowledged that their findings may be considered by some to be "inconvenient", their Honours' position was that finding a solution to this inconvenience was "a policy issue for the Parliament to consider, not this Court". As we foreshadowed in this article, Parliament has set out its solution to the issues thrown up by the McGlade Decision in the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (Cth) (Bill), which includes provision for:

• a native title claim group to be able to nominate one or more members of their RNTC to sign an ILUA, or else specify a process for determining which members of the RNTC are to sign (if the group does neither, a majority of RNTC signatures will be sufficient); and
• validation of all ILUAs made before 2 February 2017 that were registered without a full set of RNTC signatures (or, as was the case with some ILUAs that had been registered over the years - including within the western Cape York region, without any RNTC signatures).

Where to from here?

It is widely expected that the Bill will be passed by the House, and receive the Royal Assent, before long. Once that occurs, Proponents (both public and private) and native title parties who feared that the McGlade Decision might have rendered their existing ILUAs invalid will be able to breathe a sigh of relief. We anticipate that the Native Title Registrar will then lift the moratorium on registering ILUAs that has been in place since the date of the McGlade Decision, which would leave the Registrar free to be able to resume his consideration of the various ILUAs, such as the Adani ILUA, that have been in abeyance since 2 February 2017.

More generally, we do not anticipate that this is the end of the road for native title reform. Further amendments (covering such matters as how RNTCs can enter into "right to negotiate" agreements, how "authorisation" decisions can be made for ILUAs and how ILUAs can be amended after registration) may be expected following additional public consultation. We will periodically issue updates on the progress of this reform effort.

RELATED KNOWLEDGE

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

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. Persons listed may not be admitted in all states and territories.