On 2 February 2017, the Full Federal Court decided that a number of indigenous land use agreements (ILUAs) forming part of the South West Native Title Settlement in Western Australia were invalid and incapable of registration by the Native Title Registrar (McGlade v Native Title Registrar  FCAFC 10 (McGlade)).
The court’s decision was based on the fact that the ILUAs had not been signed by all of the named applicants in the relevant native title claims.
The decision in McGlade overturned a 2010 decision of the Court which had accepted that an ILUA signed by some but not all named applicants was capable of registration (QGC Pty Ltd v Bygrave (No 2)  FCA 1019 (Bygrave)). Since 2010, the Native Title Registrar has relied on Bygrave to register partially executed ILUAs.
These developments pose a considerable risk for resource, infrastructure and agriculture projects that have relied on ILUAs to address native title.
The McGlade decision has significant repercussions:
The decision may have implications for the validity of other partially executed agreements (eg right to negotiate agreements and agreements dealing with Aboriginal cultural heritage).
The Native Title Registrar is considering the implications of the McGlade decision for ILUAs which have been registered or submitted for registration. There have also been calls for the Commonwealth to address the decision though amendments to the NTA.
We will monitor these developments and provide updates as details emerge. In the meantime, we recommend that proponents take steps to:
Please contact Richard Abraham on 07 3119 6149 or at firstname.lastname@example.org if you have any queries in relation to this issue.