Australia: ILUAs fit the Bill - Senate resolves uncertainty following the McGlade decision

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

  • Legislation has been passed to restore the status quo in relation to the execution of ILUAs.

WHAT YOU NEED TO DO

  • Note the majority execution provisions, as well as other new provisions relating to claim group authorisation.

The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (the Bill) has been passed.

The Bill reverses the effect of the decision in McGlade v Native Title Registrar & Ors [2017] FCAFC 10 (McGlade) and restores the status quo in respect of the execution and registration of Indigenous Land Use Agreements (ILUAs).

Background
In February, the Full Federal Court's decision in McGlade cast uncertainty over the validity of existing ILUAs and those awaiting registration. The decision overturned common practice, and held that all persons comprising the native title claimant - with no exceptions - were required to sign the document in order for it to constitute an ILUA and be effectively registered.

Acknowledging the impact of this decision on the validity of persisting future acts, the Bill was urgently introduced to amend the Native Title Act 1993 (Cth) (NT Act) and rectify the uncertainties created by the decision. A Senate Committee report tabled on 20 March 2017 recommended the passing of the Bill, with particular amendments.

Following a great deal of public scrutiny, political frustration, and a number of amendments, the Bill was passed on 14 June 2017.

Key points
Of note, the Bill amends the NT Act to:

  • provide an avenue for the claim group to decide which person or persons comprising the registered native title claimant may execute ILUAs. This may involve the nomination of individuals, or agreement on a determinative process to appoint individuals (e.g. that the eldest will sign)
  • where no nomination is made or process agreed, require ILUAs to be signed by a majority of people comprising the registered native title claimant
  • validate and make registrable any ILUA made on or before 2 February 2017 that was not signed by all persons comprising the registered native title claimant
  • validate any ILUA that was not signed by any of the registered native title claimants, but that was registered on or before 2 February 2017, and
  • validate any application for registration of an ILUA made on or before 2 February 2017, and that would otherwise be invalid because of McGlade.

Where to from here
The Bill is a welcome solution to the unease created by McGlade.

That said, it does not resolve all uncertainty created by the decision, or address persisting issues surrounding the operation of the NT Act.

Concerns about the impact that McGlade might have on right to negotiate agreements under section 31 of the NT Act were raised in submissions on the Bill. Acknowledging this, the Senate Committee recommended that the Federal government consider the need for further amendments to the NT Act to ensure that section 31 agreements could not be invalidated in the same manner as the ILUAs in McGlade. The Federal government has expressed the need to consult further with stakeholders on this issue.

Both the Senate Committee and Federal government have foreshadowed further amendments to the NT Act, in line with the recommendations in the 2015 Australian Law Reform Commission 'Connection to Country' report on the NT Act (ALRC Report). The initial form of the Bill included provisions implementing particular aspects of the ALRC Report, which would permit claim groups to authorise an ILUA and make applications for compensation or determination by a traditional process or a method agreed by the group. It was agreed that these measures lay outside the scope of the immediate amendments intended to resolve McGlade, and were removed to be considered at a later date, along with each of the other recommendations made in the ALRC Report.

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