Australia: Native Title Act amendment to clarify ILUAs after McGlade decision

On 13 June 2017, the Commonwealth Parliament passed the Native Title Amendment (Indigenous Land Use Agreements) Bill 2017. The Bill has been referred to the Governor-General for assent.

The Bill amends the Native Title Act 1993 (Cth) to resolve uncertainty that was created by the Full Federal Court decision in McGlade v Native Title Registrar and Ors of 2 February 2017 regarding the validity of indigenous land use agreements.

The McGlade decision held that an area ILUA over land could not be registered unless each of the registered native title claimants for the relevant claim had signed the ILUA. This meant that even where a person was unable to sign because they had passed away, or where not all of the claimant's signatures had been sought, that the ILUA was not capable of registration. The decision also put into question ILUAs that had already been registered but were not signed by all of the registered native title claimants.

The McGlade decision overturned a prior Federal Court decision in QGC Pty Ltd v. Bygrave ( No 2) [2010] 189 FCR 412, that stated that an ILUA could be registered even if only one member of the registered native title claimants had signed.

The Bill clarifies the issue and provides that in the future an ILUA can be signed by one or more members of the registered native title claimants if they have been nominated to do so by the native title claim group. If no one has been nominated then a majority of the registered native title claimants must sign the ILUA.

The Bill also retrospectively validates existing registered ILUAs, not signed by all of the registered native title claimants, and those in the process of being registered before February 2017. The amendments confirm that the ILUAs are valid and effective and capable of registration.

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