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  • The Full Federal Court’s decision in McGlade v Native Title Registrar [2017] FCAFC 10 (‘McGlade’) rejects established principles around the execution of Indigenous Land Use Agreements made under the Native Title Act 1993 (Cth).
  • The Court held that certain types of ILUAs require all named registered native title claimants in a native title claim to execute the agreement. There are no exceptions, even when a member of the registered native title claimant has died. If an agreement is missing any of the necessary signatures, it cannot be an ILUA under the NTA and cannot be registered by
    the Tribunal.
  • The decision casts doubt on the validity of ILUAs registered since 1998 in circumstances where not all of the registered claimants signed the agreement, whether because they were deceased or incapacitated or simply refused to sign. It also creates significant uncertainty and risk with respect to any tenures granted, activities done or benefits provided under the authority of those ILUAs.
  • The Government has introduced the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 in response to the implications of McGlade.

For many years, the State of Western Australia has been negotiating an alternative settlement arrangement to resolve the numerous overlapping native title claims that cover the Perth CBD metropolitan area and the South West of Western Australia. Those negotiations ultimately resulted in a commercial deal being struck with the relevant native title claim groups, in which the traditional owners would agree that native title does not exist in the South West of Western Australia, in exchange for a significant package of financial and non-financial benefits.

Six Indigenous Land Use Agreements (‘ILUAs’) were negotiated and executed pursuant to resolutions made at authorisation meetings in early 2015, and the State applied to the National Native Title Tribunal (‘NNTT’) for their registration as ‘area ILUAs’ under the Native Title Act 1993 (Cth) (‘NTA’).

An ‘area ILUA’ is one of three types of ILUAs created by the NTA, and is commonly used in circumstances where native title has not yet been determined to exist. The McGlade decision is not relevant for the other types of ILUAs.

Although the ILUAs had been signed in conformity with the relevant meeting resolutions, not all persons who jointly comprised the registered native title claimant in each claim had executed the agreements, either because they were deceased or for other reasons (eg they objected to the settlement). In the case of one ILUA, a person did not sign the agreement until after it was lodged for registration.

When the proposed registration of those ILUAs was publicly notified by the NNTT, multiple persons made formal objections about the registration of four of the ILUAs on grounds that not all of the registered native title claimants had signed them.

The case was heard directly by the Full Federal Court as a special case under s 25(6) of the Federal Court of Australia Act 1976 (Cth) after being remitted to the Federal Court by the High Court during a failed attempt by the Applicants to have the issue heard directly by the High Court in its original jurisdiction (see Mingli Wanjurri McGlade (formerly Wanjurri-Nungala) v Registrar National Native Title Tribunal [2016] HCA Trans 40).

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