The McGlade decision
In the decision in McGlade v Native Title Registrar  FCAFC 10 (McGlade) handed down on 2 February 2017, the Full Federal Court considered the validity of registration of a number of the ILUAs forming part of the South West Settlement in Western Australia. It determined that they could not be registered under the Native Title Act 1993 (Cth) (NTA) as they did not comply with 24CD(1) of the NTA which provides that “All persons in the native title group in relation to the area must be parties to the agreement”.
The Court determined that all persons named as applicant in the registered native title claim must execute the ILUA to enable it to be registered. Consequently, if a person in the native title group refused or was otherwise unable to sign the ILUA, the agreement could not be registered as an ILUA under the NTA.
The implications of this decision are significant. Not only does it affect the immediate parties to the case (the six South West ILUAs with the Noongar people), but it raises concerns regarding the grants of tenure consented to under an ILUA. It also has the potential to render future ILUA negotiations difficult and prolonged and result in an ILUA not being a practicable option in some circumstances.
In order to rectify the situation, Federal Parliament has introduced the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (Bill) which seeks to amend subsection 24CD(2)(a) of the NTA so “native title group” is defined as either:
• the persons authorised under the new section 251A(2) of the Bill; or
• a majority of the persons who comprise the registered native title claimant.
The new section 251A(2) of the Bill provides that a native title group can authorise the making of an ILUA by nominating the person(s) from the registered native title claimant who should be a party to the ILUA or by specifying a process for deciding who the persons nominated to be a party to the ILUA should be.
If the Bill is passed in its current form, any registered ILUAs or applications for registration of an ILUA that would otherwise be invalid because of the McGlade decision will be validated retrospectively by virtue of the Act. This will include the ILUAs forming part of the South West Settlement in Western Australia that were the subject of the McGlade decision.
The Bill was tabled in Parliament on 15 February 2017 with the Senate Legal and Constitutional Affairs Legislative Committee due to report on the Bill on 17 March 2017.
Please contact us at McGuinnLegal if you have security of title concerns regarding any mining tenements or other tenure consented to under an ILUA registered under the NTA or if you need further advice in relation to the progress of this Bill.