Full Federal Court decision in McGlade has significant repercussions for ILUAs

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 [2017] 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) [2010] 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.

Significance

The McGlade decision has significant repercussions:

• Any interests (including mining and petroleum tenures) granted in reliance on partially executed ILUAs may be invalid with respect to native title. Native title parties may be able to take steps (including by seeking injunctive relief) to prevent such interests from impacting on their native title.
• Partially executed ILUAs authorised by native title groups (often at considerable cost to proponents) and submitted to the Native Title Registrar for registration may be incapable of registration.
• The decision may affect the validity of ILUAs already registered by the Native Title Registrar (and interests granted in reliance on those ILUAs) where one or more named applicants did not sign the ILUA because they were deceased. The Native Title Registrar has had a policy of registering such ILUAs following the production of death certificates for the relevant named applicants.
• Native title claim groups will need to use the processes in section 66B of the Native Title Act 1993 (Cth) (NTA) to remove or replace recalcitrant, incapacitated or deceased members of the applicant. These processes are often contentious and lengthy.

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).

Next steps

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:

• identify any partially executed ILUAs or other agreements (and any interests granted under such agreements) that may be affected by the McGlade decision; and
• factor additional time and resources into ongoing or proposed negotiations with native title parties to ensure that resultant agreements are executed by all named applicants.

Please contact Richard Abraham on 07 3119 6149 or at richard.abraham@minterellison.com if you have any queries in relation to this issue.