Government Introduces Bill To Counter Recent FCAFC Decision on Indigenous Land Use Agreements
Thursday 16 February 2017 @ 11.09 a.m. | Legal Research
The Federal Government has introduced the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 into Parliament. The Bill aims to resolve the current uncertainty around Indigenous Land Use Agreements (ILUAs), following a landmark case in the Full Federal Court (McGlade v Native Title Registrar & Ors [2017] FCAFC 10) which found that ILUAs may not be valid unless they are signed by all members of a registered native title claimant (RNTC). The Full Federal Court ruling, which was handed down on 2 February 2017, overturned a previous decision (QGC Pty Ltd v Bygrave and Others (No 2) (2010) 189 FCR 412; [2010] FCA 1019, the “Bygrave decision”), which had found that it was not necessary for all members to sign.
Attorney-General Brandis told Parliament on Monday that:
"This is a very significant development in relation to not only indigenous land use agreements, of which there are 123 in Australia at the moment registered, but in relation to all indigenous land use agreements seeking registration because the effect of it is to enable a single member of the claimant group, by withholding their consent, to prevent the registration of the ILUA.”
The Government had said it would introduce legislation urgently in order to restore the “status quo ante”.
The Bill
The Bill’s Explanatory Memorandum states that the primary objectives of the Bill are to:
“a. confirm the legal status and enforceability of agreements which 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 (RNTC)
b. enable registration of agreements which have been made but have not yet been registered on the Register of Indigenous Land Use Agreements, and
c. ensure that in the future, area ILUAs can be registered without requiring every member of the RNTC to be a party to the agreement.”
The Full Federal Court Decision
The Full Federal Court case found that a $1.3 billion Western Australian land use agreement with the Noongar people could not be registered with the Native Title Registrar, as five of the claimants refused to sign five of the land use agreements making up the deal.
The Full Federal Court considered the “key issue” of whether an ILUA could be registered if not all individuals comprising the registered native title claimant/s have signed, and whether that was affected if one or more of those individuals were deceased at material times.
In a joint opinion written by Justice North and Justice Barker, their Honours said:
“the Court respectfully declines to follow Bygrave. While the claim group’s authority is unassailable when it comes to the authorisation of persons to lodge a claimant application and in deciding whether an applicant should be replaced, and in authorising an indigenous land use agreement for registration, the claim group does not have the power otherwise to alter the requirements of the NTA governing who should be parties to, and sign, an area agreement. While a person or persons are persons in the native title group, as defined, they must be parties to the agreement, and must sign the agreement if it is to be registered. If they are effectively removed from the persons jointly comprising the applicant by an order made under s 66B, however, their signatures will no longer be required.” [at 267]
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Sources:
Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (Cth) & Explanatory Memorandum - available from TimeBase's LawOne service
McGlade v Native Title Registrar [2017] FCAFC 10 (2 February 2017)
