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Changes to Native Title Act following McGlade v Native Title Registrar

The recent decision of the Full Court of the Federal Court in McGlade v Native Title Registrar [2017] FCAFC 10 on 2  February 2017 generated uncertainty around the status of existing registered Indigenous Land Use Agreements (ILUAs) where not all persons comprising the registered native title claimant(s) signed, or are a party to, the ILUA.  The Federal Parliament has now passed a bill to amend the Native Title Act 1993 (Cth) to validate affected ILUAs and to set a revised process for authorising future ILUAs. The key amendments are summarised in this Alert.

Background

In February 2017 the Full Court of the Federal Court determined in McGlade v Native Title Registrar [2017] FCAFC10 that Indigenous Land Use Agreements (ILUAs) are not registrable in circumstances where not all of the persons comprising the relevant native title claimant are parties, and signatories, to the ILUA.  Our Alert about this decision can be accessed here.

As a result of the Full Court’s decision, uncertainty arose around the status of existing registered ILUAs where not all persons comprising the registered native title claimant(s) signed, or are a party to, the ILUA.  ILUAs affected include those where a person comprising the claimant was deceased or lacked the mental or physical capacity to sign the agreement.

The Native Title Act 1993 (Cth) (NTA) defines ‘registered native title claimant’ as a person or persons whose name or names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title. In the McGlade decision, four ILUAs were held to be invalid as ILUAs due to the fact that not all the ‘registered native title claimant(s)’ had signed these agreements.

In order to address this uncertainty, the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 was introduced into Parliament to seek to validate otherwise invalid agreements, and to also clarify the process by which ILUAs may be authorised in future.

The Bill was passed by Federal Parliament on 14 June 2017.  It will amend the NTA.  The key amendments to the NTA are set out in this Alert.

Amendments to Native Title Act 1993 (Cth)

The key amendments are as follows:

  • Section 251A of the NTA, which relates to how persons may authorise the making of ILUAs, has been changed by inserting a new subsection (2) which introduces the ability for a native title claim group to nominate one or more of the persons who comprise the registered native title claimant to be a party or parties to the ILUA, and an ability to specify a process for determining which of the persons who comprise the registered native title claimant is to be a party, or are to be parties, to the ILUA.
  • The requirements as to who must be a party to an area ILUA have been clarified.  Where there is a registered native title claimant in respect of the land and/or waters comprised in the proposed area of an area ILUA, the person or persons nominated or determined pursuant to subsection 251A(2), must be a party or parties to the ILUA.  If a nomination or determination has not been made pursuant to subsection 251A(2), a majority of the persons who comprise the registered native title claimant must be party or parties to the ILUA.
  • Agreements made on or before 2 February 2017 are validated if they are of a type which purported to be an ILUA but were not an ILUA because the agreement was not signed as required, but at least one of the persons that comprise a registered native title claimant or claimants for the land and waters in the area of the agreement were a party to the agreement.
  • Similarly, agreements registered on the Register of Indigenous Land Use Agreements on or before 2 February 2017 are validated if they are of a type which purported to be an ILUA but were not an ILUA because none of the persons who comprised the relevant registered native title claimant(s) were a party to the agreement.
  • Applications for registration of ILUAs made on or before 2 February 2017 are valid where the agreement the subject of the application is of a type which purported to be an ILUA but was not an ILUA because the agreement was not signed as required, but at least one of the persons that comprise a registered native title claimant or claimants for the land and waters in the area of the agreement was a party to the agreement.
  • The four ILUAs which were held to be invalid by the Full Court of the Federal Court in McGlade v Native Title Registrar will be taken to be ILUAs from the commencement of the Native Title Amendment (Indigenous Land Use Agreements) Act 2017.

Conclusion

The passed Bill, once it commences (on Royal assent), will provide certainty to those parties who have entered into ILUAs or have ILUAs registered on the Register of Indigenous Land Use Agreements on or before 2 February 2017.  It will also provide clarity on whether an area ILUA has been appropriately authorised, and the persons who are required to be party to the agreement for the relevant registered native title claimant(s).

Changes to Native Title Act following McGlade v Native Title Registrar

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