By Michael Hunt – Principal at Hunt & Humphry.

Under the Native Title Act 1993 (NTA) one way in which a mineral or petroleum title may validly be granted over land which is (or may be) subject to native title is by following the “right to negotiate process”. Another way is pursuant to an indigenous land use agreement (ILUA).

After signing, an ILUA should be registered so that it has the statutory effect afforded to registered agreements by the NTA which provides that once an ILUA’s details are entered on the Register of Indigenous Land Use Agreements, it has effect (in addition to any effect it may have apart from the NTA) as if:

  • it were a contract among the parties to it; and
  • all persons holding native title in relation to any of the land covered by the agreement, who are not already parties to it, were bound by it in the same way as the native title claimants/holders who signed it. To express this last statement more intelligibly: when a people is determined to hold native title, a registered ILUA will bind all the members of that people (not just the persons who signed the ILUA).

The recent decision of the Federal Court in McGlade v Native Title Registrar[1] held that area indigenous land use agreements (Area ILUAs) could not be registered unless all applicants named as a registered claimant had signed them, even if one of the registered claimants was deceased. This decision overturns the previous position under QGC Pty Ltd v Bygrave (No 2)[2] which was that an Area ILUA could be registered if at least one of the applicants signed it.

Whilst McGlade concerned only four Area ILUAs in Western Australia intended to compensate the Noongar people for extinguishment of native title rights and interests in the south-west of WA, the decision has wide implications for the status of many ILUAs throughout Australia in relation to mineral and petroleum projects in circumstances where the ILUAs, based on which tenure was granted, were registered without the signatures of all registered applicants/holders. Recent publicity has noted that the ILUA for Adani’s proposed Carmichael coal mine in Queensland falls into this category.

The consequence of McGlade is not that ILUAs which have not been signed by all registered applicants/holders are invalid; simply that such ILUAs do not attract the benefits of registration under the NTA. One consequence of this is that the proponent cannot rely on the Area ILUA to validate any “future acts” (i.e. grant of tenements or permits).

The Commonwealth government responded swiftly to McGlade by introducing a bill (Bill) for the Native Title Amendment (Indigenous Land Use Agreements) Act 2017 to the Commonwealth parliament. The Bill, if enacted, will resolve the uncertainty created by the decision.

The Bill will, if enacted:

  • confirm the legal status and enforceability of agreements which have been registered by the Native Title Registrar on theRegister of Indigenous Land Use Agreements without the signature of all members of a registered native title claimant;
  • enable registration of an ILUA which has been made but have not yet been registered on theRegister of Indigenous Land Use Agreements; and
  • ensure that in the future, an ILUA can be registered without requiring every member of the registered native title claimants to be a party to the agreement.

It is beyond the writer’s powers to predict the outcome but (apparently) the Labor party supports the Bill. However, the traditional owners of the land the subject of the Adani coal project have voiced their opposition to it. They are quoted[3] as saying: “The Federal Government should stop pandering to Adani and the minerals councils and get native title reform right”.

The Convener of Sovereign Union of First Nations and Peoples in Australia and Head of State of the Euahlayi Peoples Republic said the Bill “is indeed one of the vilest racist acts we have seen, after the Native Title Act itself. It truly represents that the Coalition government and the conservative Labor party govern for the non-Aboriginal society with little or no concern for inherent Aboriginal rights and this is despite years of condemnation by the United Nations Human Rights Commission”.[4]

The Bill was passed by the House of Representatives. But the Senate referred the Bill to a committee which tabled its report on 20 March 2017. The committee recommended that the Bill be passed, subject to removal of some provisions which deal with matters outside the McGlade decision.

The Government failed to get the Bill enacted by the end of the recent parliamentary sitting and the next opportunity for the Federal Senate to consider the Bill is the Budget Sitting in early May and, if not then, the next sittings are mid-June.

The criticism of the McGlade decision on the basis that it is too bureaucratic and legalistic to require every applicant to sign is, in my opinion, uninformed. Clearly section 24CD(1) of the NTA requires that all persons (emphasis mine) in the native title group must be parties to the agreement. The consequence of being a party to an agreement is that the party must sign it, thus indicating they are bound by it. The NTA contains no indication to the contrary.

The rationale is that procedure exists under the NTA to remove the name of a deceased person as a native title claimant. However, if that occurs, the claim group as a whole may wish to alter the composition of the applicant in a significant way as a result of the death of that person. There might be a particular reason the deceased person was authorised as a member of the applicant – for example, they may have been the representative of a particular family – and that family may wish to substitute another person for the deceased person to ensure a continuing connection.

It should be noted that the McGlade decision was a result of proceedings to prevent the Registrar from registering the signed agreement as an ILUA. So it is relevant to ask, what are the implications of McGlade for incompletely signed ILUAs which have already been registered?

In my opinion, the reasoning in McGlade does not mean that such ILUAs are invalid. I think it simply means that they are not indigenous land use agreements for the purposes of the NTA and therefore the consequences of registration as an ILUA under the NTA are not attracted.

It follows that, as the situation presently stands, the mineral or petroleum company concerned cannot rely on the ILUA for assurance of validity of tenure granted in reliance on the provisions of the NTA which protect tenure granted under a properly executed and registered ILUA.

It also follows that, unless the Bill is enacted by parliament or unless the McGlade decision is successfully appealed, a mineral or petroleum company which has relied on an incompletely signed ILUA for the grant of its tenure should get legal advice on the validity of its tenure.

[1] [2017] FCAFC 10

[2] (2010) 189 FCR 412

[3] Media release 31 March 2017 by Anthony Esposito, W&J Council advisor

[4] Media release 16 February 2017

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