The Native Title Amendment (Indigenous Land Use Agreements) Bill 2017 (Bill) was passed by both houses of Parliament on Wednesday, 14 June 2017.

The Bill reverses the impact of the Federal Court's decision in the McGlade case (McGlade Decision) and seeks to provide the sector with certainty regarding the execution of the indigenous land use agreements (ILUAs).

Refresher - The McGlade Decision

In the 2017 McGlade Decision, the Federal Court held that if a single member of the registered native title claimant (RNTC) withholds their consent to execute an ILUA, the agreement cannot be registered despite authorisation of the agreement by all persons who hold or may hold native title within the area of the ILUA.

The McGlade Decision created widespread uncertainty in the native title sector regarding the status of ILUAs:

  • ILUAs registered without the signatures of all RNTC members, including members who are deceased, were agreements which did not meet the requirements for ILUAs as defined under the Act, and
  • ILUAs lodged for registration without the signatures of all RNTC members could no longer be registered.

The Impact of the Bill

This Bill makes various amendments to the Act in order to reverse the impact of the McGlade Decision and secure existing ILUAs which have been registered (and existing ILUAs not yet registered) and not signed by all members of the RNTC.

The Bill also amends the Act to state in clear terms who may sign an ILUA. The Act now states that an ILUA may be signed by:

  • the person(s) nominated by the native title claim group; OR
  • if no person(s) have been nominated by the native title claim group, a majority of the persons comprising the RNTC.

The Bill supports the integrity of authorisation processes, by ensuring that native title claim groups can nominate who will carry out the will of the claim group and execute an ILUA.