The Federal Government has moved to provide certainty for those who rely on registered Indigenous Land Use Agreements, following the Full Federal Court's decision that called the legal status of these agreements into question, by introducing amending legislation. Partner Ben Zillmann and Senior Associate Andrea Moffatt look at the key elements.
As detailed in our Client Update: Registering Indigenous Land Use Agreements – it's all or nothing, the Full Federal Court's decision in McGlade v Native Title Registrar called into question the legal status of registered Indigenous Land Use Agreements (ILUA) that have not been signed by all registered native title claimants.
The Federal Government has now introduced a Bill to amend the Native Title Act 1993 (Cth) to provide certainty for proponents and Indigenous parties who rely on existing registered ILUAs or are negotiating one.
The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 was introduced on 15 February by the Federal Attorney-General, with the stated objectives of:1
- confirming the legal status and enforceability of agreements that have been registered by the Native Title Registrar on the Register of Indigenous Land Use Agreements without the signature of all members of a registered native title claimant;
- enabling registration of ILUAs that have been entered into, but not yet registered, and
- ensuring that future ILUAs can be registered without requiring every member of the registered native title claimant to be a party.
The amendments to the Native Title Act are directed at resolving the status of 'area ILUAs', which are made in relation to land or waters that are subject to a registered native title claim.2 If the Bill is passed as currently drafted:
- for area ILUAs made after the legislation is amended, a native title party will be able to nominate one or more members of the registered native title claim group to sign an ILUA. Failing any nomination, the ILUA will be valid if executed by a majority of the registered native title claim group members;
- where area ILUAs made on or before 2 February 2017 which, following McGlade, do not qualify as an ILUA solely because not all registered native title claimants were party to the agreement:
- those ILUAs will be deemed to be valid;
- an existing application for registration of such an ILUA will be valid and effective; and
- if registered, the registration of such an ILUA will be deemed to be valid and effective.
The Bill also provides for payment of compensation by the Commonwealth if the operation of the proposed amendments would result in an acquisition of property otherwise than on just terms3 (for example, in the event that, as a result of the deeming of the validity of an area ILUA, the Commonwealth acquires the right of a party to challenge a decision to register the ILUA).4
The Bill was passed by the House of Representatives on 16 February, and is currently before the Senate Legal and Constitutional Affairs Legislation Committee, which is due to report on the Bill by 17 March 2017.
It is not known yet whether the Bill will be passed in its current form (or at all). Until any legislative reform process is complete:
- parties to existing area ILUAs should continue to review these to see whether they are caught by the McGlade decision; and
- parties who wish to enter into an area ILUA should consider whether it is possible for all registered native title claimants to enter into the agreement and if not (for example, where a registered claimant is deceased), seek advice on options to address this issue.
- Explanatory Memorandum to the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017, page 2.
- McGlade does not impact on the status of 'body corporate' or 'alternative procedure' ILUAs.
- within the meaning of paragraph 51(xxxi) of the Constitution.
- See  –  of the Explanatory Memorandum, page 12. The Commonwealth has stated in the Explanatory Note that it does not consider this to be a likely result of the Bill.