What you need to know
- The Federal Government's Bill to reverse the impact of the Full Federal Court's decision in McGlade v Registrar National Native Title Tribunal [2017] FCAFC 10 (McGlade) was passed on 14 June 2017.
- McGlade cast doubt on the validity of over one hundred Indigenous Land Use Agreements (ILUAs) registered since 1998 in circumstances where not all of the registered native title claimants signed the agreement, and significant uncertainty and risk with respect to tenures or activities done under the authority of those ILUAs.
- The Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth) reverses the impact of McGlade for registered ILUAs and some ILUAs pending registration and changes the requirements for who must be a party to future ILUAs.
- For future ILUAs, the Amendment Act allows the native title claim group to either nominate particular applicants to be a party or decide that the agreement needs to be signed by a majority of the applicants.
- The Amendment Act does not address the impact of McGlade on other agreements with native title groups, particularly agreements under the right to negotiate process.
What you need to do
- Proponents should review their existing agreements with native title claim groups to determine the impact of McGlade and, if impacted, whether the agreements will be validated by the Amendment Act.
- We recommend that this review includes not just ILUAs, but all agreements with registered native title claim groups under the right to negotiate process and any State or Territory legislation.
- Proponents will need to take the new rules about who should be a party to future ILUAs into account when preparing for future negotiations. Although in the long term the new rules are likely to save time and costs, there will no doubt be teething issues as native title claim groups grapple with how to apply them.
Background
The Full Court in McGlade held that an ILUA requires all named applicants for a claim to execute the agreement. There was no exception for situations where members of the applicant group have died or where an applicant refuses to sign against the wishes of the group as a whole.
The decision raised questions about the validity of existing registered ILUAs and also the tenures granted and actions taken pursuant to such ILUAs, including the payment of significant benefits of native title groups.
See our 2 February 2017 Native Title Alert: Full Court rejects established practices governing execution of ILUAs - South West Settlement ILUAs cannot be registered for a summary of the decision and its implications for proponents.
Native Title Amendment (Indigenous Land Use Agreements) Act 2017 (Cth)
Senate Inquiry
The Federal Government moved swiftly to create a legislative fix and introduced the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (Cth) on 15 February 2017.
The Senate referred the Bill to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 17 March 2017. Fifty nine submissions were received and a public hearing has held in Brisbane on 13 March 2017.
In its Report dated 20 March 2017, the Committee recommended that the Bill be passed with minor amendments to remove two provisions that were not necessary to address McGlade.
Amendments to the Bill
Significant stakeholder consultation occurred during April and early May, and the Bill was listed for debate again on 10 May 2017.
The Government proposed new amendments to the Amendment Bill which addressed the Senate Committee's recommendations.
Further amendments were proposed to address an issue raised by the Cape York Land Council regarding ILUAs that were not validated by the original draft of the Amendment Bill because none of the registered native title claimants had signed.
Parliament passes the Bill
The Amendment Bill (as amended) was passed by the Senate and the House of Representatives on 14 June 2017.
What does the Amendment Act do?
The Amendment Act:
- retrospectively validates registered ILUAs that did not comply with McGlade and by implication validated all tenures granted and acts done under those ILUAs (including those registered ILUAs covered by the Cape York Land Council amendments);
- allows for the registration of some ILUAs lodged for registration before McGlade that do not comply with McGlade; and
- changes the requirements for who must be a party to future ILUAs to reverse the rule in McGlade.
For future ILUAs, the Amendment Act allows the native title claim group to decide who among the applicants will be a party to the agreement. They can either nominate particular applicants or decide that the agreement needs to be signed by a majority of the applicants.
The intention of the new procedure is to put decision making power in the hands of the group. It "supports the integrity of the authorisation process" and "ensures that the will of the native title claim group in authorising the agreement is not frustrated" (see paragraph 18 and 20 of the Explanatory Memorandum).
Proponents will need to take the new rules about who should be a party to future ILUAs into account when preparing for future negotiations. Although in the long term the new rules are likely to save time and costs, there will no doubt be teething issues as native title claim groups grapple with how to apply them.
Amendment Act does not cure the unintended consequences of McGlade for other agreements
The impact of McGlade may not be limited to ILUAs.
There is a risk that McGlade could equally apply to right to negotiate (RTN) agreements for the purposes of section 31 of the Native Title Act 1993 (Cth) (NTA) that in some cases are also missing the signatures of all registered native title claimants. The decision calls into question the validity of those RTN/section 31 agreements and the grants or acts done under them. It also raises a question about whether the parties are able to comply with the obligation to negotiate in good faith where there is a deceased member of the registered native title claimant.
This risk is not addressed in the Amendment Act, which only relates to ILUAs. A number of submissions to the Senate Committee called for the Bill to be amended to resolve this problem. The Senate Committee Report expressed the view that the Commonwealth should consider future amendments to the NTA to ensure that McGlade does not affect RTN agreements [at 2.73]. It is not known whether this will occur.
In the meantime, proponents should review their existing agreements with native title claim groups to determine the impact of McGlade and, if impacted, whether the agreements will be validated by the Amendment Act.
We recommend that this review includes not just ILUAs, but all agreements with registered native title claim groups under the right to negotiate process and any State or Territory legislation.
