Registering Indigenous Land Use Agreements - it's all or nothing

In brief

In McGlade v Native Title Registrar, the Full Federal Court has found that the Native Title Registrar does not have the jurisdiction to register an agreement on the Register of Indigenous Land Use Agreements unless the agreement is signed by all registered native title claimants. This is a significant change from the current legal position and has potentially far reaching consequences not just for future agreements, but will also call into question the validity of many existing agreements. Partner Ben Zillmann and Senior Associate Andrea Moffatt consider the implications of the decision.

What does the decision mean for you?

Negotiation and registration of an Indigenous Land Use Agreement (ILUA) is a means by which entities can validly undertake activities that may impact on native title, and are commonly used by a range of parties to facilitate the grant of mining and petroleum rights, land titles, infrastructure rights, or by government, to settle claims and perhaps provide for the surrender of native title. However, unless an ILUA is registered, it cannot achieve this result.

• In order to be registrable as an ILUA, any future agreement will need to be executed by all persons who are the registered native title claimants for the relevant native title party (the claimants).
  • It is not sufficient that the native title group has authorised less than all the claimants to execute an ILUA.
  • This will be the case even if one of the named claimants is deceased.
  • The inability or unwillingness of one or more the claimants to sign a proposed ILUA is likely to give rise to delays in finalising the agreement, as an amendment of the registered native title claimant will be required. This will require a court application, and the change will need to be authorised in accordance with the relevant statutory procedures – changes to the claimants are often contentious and protracted.
• Existing registered ILUAs should be reviewed to determine whether they were executed by all the claimants. If not, advice should be sought on the registration and contractual status of the agreement and on the implications for any future acts undertaken or granted in reliance on the registration of the agreement. There may be questions about the validity of rights granted in reliance of an ILUA that was not signed by all the claimants.

Background

In the McGlade case, six agreements (each in the form of an ILUA) were negotiated between the State of Western Australia (the State), the South West Aboriginal Land and Sea Council and the Noongar People to provide for a full and final settlement of all present and future claims by the Noongar People under the Native Title Act 1993 (Cth) (the NTA) in respect of a large area of land and waters in the south-west of Western Australia, around the Perth region.

The State applied to register the agreements on the Register of Indigenous Land Use Agreements. Proceedings to prevent such registration were commenced in the High Court of Australia in relation to four of the agreements which (although signed in conformity with resolutions passed at meetings of Noongar People held for the purpose of authorising the making of the agreements) had not been signed by all persons who comprised the claimant(s) for the claim(s) within the agreement area. The proceedings were remitted to the Full Federal Court, and heard in July 2016.

The Federal Court (in a single judge decision) had previously ruled in a separate case in 2010 that it was not necessary for all individuals which constituted the registered native title claimant to sign an ILUA. That ruling was in the case of QGC Pty Ltd v Bygrave (No 2).¹ Rather, it was decided that it was sufficient that the ILUA had been authorised by the native title claim group and it did not matter if not all the claimants had signed the ILUA if this had occurred. That decision had stood as good law for the past six years.

On 2 February, in the McGlade decision, the Full Federal Court declared that each of the four agreements was not an ILUA within the meaning given under the NTA, and the Native Title Registrar did not have jurisdiction to register the agreements.² In doing so, the Full Federal Court decided the decision in Bygrave was incorrect.

Registered Native Title claimants and registered ILUAs

All native title claims have 'registered native title claimants'. These are effectively several individuals nominated and authorised by the much larger native title group as the representatives for the claim group, and their names are recorded on the register maintained by the National Native Title Tribunal (NNTT). It is possible to change the claimants for a claim, but such a process is not straightforward. The broader group must authorise the change and a court application must be made. As a result, changing the claimants often takes some time, and is often a contentious matter (ie. there may be disagreement within the claim group about who should be the claimants). As many claims often last for many years before being decided, sometimes one of the claimants may pass away. However, if this occurs the person still remains one of the claimants unless and until removed by the court application process – the NTA does not provide for a deceased person to automatically cease being a claimant.

If and while registered, an ILUA has effect as if it were a contract between the parties to it, and binds all native title holders (who are not already directly party to the agreement) in relation to any of the land or waters in the area covered by the ILUA.³ Importantly, while an ILUA is registered, any 'future acts' (such as certain grants or renewals of mining or petroleum tenements, or construction of infrastructure) consented to under the ILUA will be valid to the extent the future act affects native title.⁴ A registered ILUA can also validate a future act which had been done invalidly,⁵ or can provide for the agreed surrender of native title. Therefore, ILUAs are commonly used to obtain compliance with the requirements of the NTA to authorise new projects and development.

Key points from the decision

The central issue considered by the court in McGlade was whether an agreement can be registered on the Register of Indigenous Land Use Agreements if it has not been signed by all the claimants. The agreements that were the subject of the proceedings had not been signed by all the claimants for different reasons, including opposition to the agreement, incapacity, or the fact that one of the claimants was deceased.

In summary, following the decision:

• an agreement cannot be registered as an ILUA if it has not been signed by all the claimants;
• it is not possible to take a 'pragmatic' approach to resolve issues arising from the refusal, neglect or inability (for whatever reason) of a claimant to sign a proposed ILUA (for example, the requirements of the NTA cannot be met by the native title group authorising a majority of claimants to sign a proposed ILUA). In these circumstances, the native title group will need to authorise a replacement registered native title claimant which comprises persons who are willing and able to sign the proposed ILUA at the time of execution. This is significant, as following the decision in QGC Pty Ltd v Bygrave (No 2)⁶ it had been thought that if entry into an ILUA by one or only some of the relevant claimants was authorised by a native title claim group, the ILUA would be registrable; and
• as to the timing of signing the ILUA by the claimants, it is acceptable that an ILUA is only fully signed by the claimants subsequent to an application for registration being made – this will not prevent the ILUA from meeting the statutory requirements for registration.

Practical consequences

As a result of the McGlade, the following practical consequences follow:

• Anybody currently negotiating ILUAs, or considering ILUAs in the immediate future, should ensure all claimants execute the ILUA, otherwise it will be incapable of being registered.
• Given the only way to remedy a situation where some claimants will not sign an ILUA otherwise supported by the broader native title group (either because they are unwilling or unable to do so), will be for the native title group to apply to the Federal Court to amend the claimants. This may impact on the attractiveness of ILUAs as an option for project proponents, as a claimant amendment application is a matter outside of their control, could cause significant delays, and the outcome of the process would not be certain.
• Any persons with existing ILUAs will need to undertake a review of those agreements to determine if all the claimants have signed them. If not, there will be a question over the validity of those agreements, and possibly any rights granted in reliance on them. As a guide, before the decision in Bygrave in 2010, the NNTT did require all living claimants to sign an ILUA before accepting it for registration.

Therefore, ILUAs from 2010 onwards should be closely considered as they are the most likely to be impacted by the McGlade decision. However, even ILUAs before 2010 need to be checked in case there was a deceased individual nominated as a claimant at the time who was unable to sign the agreement.

Where to next?

The decision is likely to be appealed to the High Court. However, even if that occurs, that still leaves the issues summarised above for parties to grapple with in the interim period, and of course, it is possible the High Court will affirm the Full Federal Court decision.

Given the broader ramifications of the decision, it is possible that the Commonwealth may consider introducing legislation to address the uncertainty about the status of other registered ILUAs which were not executed by all the relevant claimants to date.

However, in the short term, parties to ILUAs should seek advice on these issues where appropriate.