In a Nutshell
The Full Court of the Federal Court handed down the decision in McGlade v Native Title Registrar  FCAFC10 on 2 February 2017. Four Indigenous Land Use Agreements (ILUAs) were held to be invalid as ILUAs due to the fact that not all the ‘registered native title claimant(s)’ (claimant) had signed these agreements. The decision overturns the previous position, which may call into question the validity of existing ILUAs and is likely to result in legislative amendment.
ILUAs are agreements entered into between native title groups and other parties in respect of native title rights and interests and related matters. Generally, these agreements are entered into by mining companies, petroleum companies and the Government. They simplify native title issues such as consent to future acts, protection of significant sites and culture and govern the relationship between the contracting parties.
The State of Western Australia, the South West Aboriginal Land and Sea Council and the Noongar People negotiated six ILUAs to settle all current and future claims brought by the Noongar People under the Native Title Act 1993 (NTA), pertaining to land in the South West of Western Australia. Upon attempting to register these agreements with the National Native Title Tribunal (NNTT), proceedings were initiated in the High Court to oppose the registration of four of those ILUAs. The proceedings were remitted by the High Court and heard by Full Court of the Federal Court.
The objections against the registration of these four ILUAs were on the basis that not all of the individuals who comprised the registered native title claimant had signed the relevant ILUA. The question before the court was whether or not the agreements were valid ILUAs for the purposes of the NTA.
In 2010 Justice Reeves of the Federal Court handed down the decision of QGC Pty Ltd v Bygrave (No 2) (Bygrave). This authority stood for the proposition that the Registrar of the NNTT may register an ILUA, provided that one or more duly authorised parties comprising the claimant sign it.
The Full Court rejected this decision, stating that it is necessary for each of the parties comprising the registered native title claimant to sign the ILUA.
Full Court’s decision
The Full Court considered:
- whether an ILUA may be registered if one or more of the persons comprising the registered native title claimant have not signed the agreement;
- the impact of a person comprising the registered native title claimant being deceased at the time the agreement was executed; and
- the implications of a person comprising the registered native title claimant signing the agreement after an application to register it has been made.
Despite being signed in conformity with resolutions passed by the Noongar People, the four agreements in question were all declared not to be ILUAs for the purposes of the NTA.
The consequence of this determination is that none of these agreements could be given the effect provided through registration by the NNTT. The Full Court indicated that the absence of registration might not detract from the contractual effect of the agreement between the parties to it, but the agreement would be ineffective to achieve any of the consequences (such as consent to future acts or surrender of native title rights) only capable of being achieved through registration as an ILUA.
The Full Court ruled that it was acceptable for a person comprising the registered native title claimant to sign the agreement after an application has been made to register the ILUA.
Reasoning of the Full Court
Section 24CD of the NTA requires that ‘[a]ll persons in the native title group’ (i.e. all registered native title claimants) be a party to ILUAs. Therefore, it is not sufficient for an agreement to be signed in conformity with resolutions passed by the native title group. Each person who jointly comprises the claimant(s) must sign, and be a party to, any ILUA.
An agreement is not registrable even in circumstances where one claimant refuses to sign the agreement, despite being authorised or ordered to do so by a resolution of the relevant Native Title Group.
Additionally, it applies even in the case where a claimant is deceased or lacks the mental or physical capacity to sign the agreement.
In these circumstances it is necessary for that claimant’s name to be replaced in the entry on the Native Title Register for the relevant claim. This can be achieved through an application to the Federal Court under section 66B of the NTA.
- Companies who have entered into ILUAs with native title claimants in reliance on the Bygrave principle should carefully scrutinised these agreements and seek advice if necessary, as the ILUA may be impacted.
- It is likely, due to the importance of this decision, that it will be appealed to the High Court. The High Court may affirm or reject the decision.
- Due to the uncertainty that this decisions has created, Prime Minister Malcolm Turnbull has given Attorney-General George Brandis his approval to ‘proceed urgently’ with legislative amendment to the Native Title Act. As a result, a Bill was introduced into Parliament this morning (15/2/17). The proposed amendments seek to reconcile the potential issues that this decision has created. The Bill can be access via this link.
The key matters of importance that arise from this decision are:
- noting that unless this decision is overturned on appeal or legislative change is made, the current legal position is that all ILUAs with native title claimants must be signed by each individual who comprises the claimant;
- understanding that if difficulties arise in obtaining all of these signatures, due to death, incapacity or refusal, it may be necessary to have that specific person replaced as a claimant. This can be achieved through an application to the Federal Court under section 66B of the NTA;
- being aware that future ILUA negotiations with native title claimants may be prolonged in order to ensure that all relevant registered native title claimants have been identified and sign the ILUA.;
- additionally, where a claimant has not been identified initially, it is valid to have this claimant sign the agreement after an application has been made to the NNTT.
 (2010) 189 FCR 412.